Lal Singh vs State Of U.P. And Another
2013 Latest Caselaw 3782 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 
Case :- CRIMINAL REVISION No. - 5601 of 2009
 
Revisionist :- Lal Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- B.N. Rai,Adarsh Kumar
 
Counsel for Opposite Party :- Govt. Advocate,G.Dwivedi
 

 
Hon'ble Surendra Kumar,J.

Lal Singh husband of opposite party no.2 Smt. Adarsh Devi has filed the instant revision against the order dated 14.12.2009 passed by the Additional Principal Judge, Family Court, Kanpur Nagar, in Case No.585 of 2001 Smt. Adarsh Devi Vs. Lal Singh under Section 125 Cr.P.C. whereby the learned Additional Principal Judge awarded maintenance to opposite party no.2 Smt. Adarsh Devi from the date of application at the rate of Rs.2500/- per month till the date of the order and from the date of order at the rate of Rs.5,000/- per month and directed the husband revisionist to make payment of the maintenance at the aforesaid rate.

It appears from the order sheet that though the arguments have also been advanced earlier, the revision could not be admitted, the same is admissed today with the consent of both the parties.

Heard Sri B.N. Rai, learned counsel for the revisionist, Sri Ghanshyam Dwivedi, learned counsel for the opposite party no.2, learned AGA for the State and perused the record. 

The wife Smt. Adarsh Devi, opposite party no.2 filed an application under Section 125 Cr.P.C. before the court below stating therein that she was married to Lal Singh who is revisionist herein thirty six years back as per the Hindu Rites and both of them lived happily and continued to do their duties and enjoyed their rights. One son was born out of their wedlock who was educated up to graduation level and is 28 years of age. 

It is alleged that the husband used to torture the wife abusing and beating and he did not provide any amount of maintenance to her. She reached at the stage of starvation in 2000. She was beaten and driven out of matrimonial home by husband revisionist snatching ornaments, clothes and Stridhan. The wife had no source of income and she was deprived of proper maintenance and care by her husband. The only son being fed up with cruel behaviour of his father also left his father's house. The mother and son both are living separately from the revisionist.

The wife being illiterate and without service, anyhow she is maintaining her from petty amount hardly earned by her son. The husband revisionist was appointed as T.T.A. in Telephone Exchange Department who was earning Rs.7400/- per month. Besides his salary, husband revisionist used to earn Rs.10000/- per month out of the poultry form. The husband neglected her and she was unable to maintain her. The wife claimed Rs.5000/- as maintenance by moving an application under Section 125 Cr.P.C. before the Family Court.

The husband revisionist Lal Singh filed his objection in the trial court admitting his marriage with Smt. Adarsh Devi and also admitting the birth of his son Sanghpriya Gautam. The husband denied all the allegation made in the application. According to the husband, it was his wife who had tortured him and disturbed him physically, financially and mentally. The husband desired to live with his wife and son. According to the husband revisionist, his wife used to earn Rs.2000/- or Rs.3000/- by doing work in some Bidi manufacturing Unit. Besides work of Bidi manufacturing, she has opened a shop in the name of Adarsh Devi Electronics in Hanumatnagar, Machchariya Road, Naubasta, Kanpur Nagar, from which source, she earned Rs.2000/- per month with the help of her son. The husband has further submitted that his son also earned Rs.3000/- by giving tuition etc.

The learned trial Court after considering averments raised by both the parties and going through the evidence recorded following findings:-

(a) that it was the husband who had neglected his wife without any reason and also failed to maintain his wife;

(b) that the husband earned his salary at the rate of Rs.7400/- per month which was raised in September, 2006 by implementation of the Sixth Pay Commission.

(c) After implementation of the said Sixth Pay Commission, there was unprecedented increase in the salary of the husband and it was not difficult for the husband to pay Rs.5000/- to his wife in order to enable her to live and maintain her reasonably and properly.

After recording the aforesaid findings, the learned trial Court further observed that since the husband was responsible for causing delay in conclusion of the maintenance proceedings, he was bound to pay maintenance to the wife from the date of institution of the application under Section 125 Cr.P.C. namely 28.8.2001. Considering the escalating price of the commodities, the learned trial Judge ordered the husband to pay Rs.2500/- per month as maintenance to his wife Smt. Adarsh Devi from the date of the application till the date of order and Rs.5000/- per month as maintenance from the date of the order. 

It has been submitted by learned counsel for the revisionist that the learned trial Court failed to record special reasons while awarding maintenance from the date of the application under Section 125 Cr.P.C.

Refuting the said submissions, Sri Dwivedi learned counsel for the opposite party no.2 has meekly submitted that reasons are recorded in the impugned judgment and order and after considering all the factors including salary of the husband, the impugned judgment and order was passed by the court below.

According to Sri Dwivedi, Advocate, the husband has been obtaining Rs.12470/- per month as pension after his retirement and the husband can very well pay Rs.5000/- per month to the wife towards maintenance from the date of the impugned judgment and order.

Next submission of the learned counsel for the revisionist is that alternative remedy available to the opposite party no.2 is to move an application under Section 127 (2) Cr.P.C. for enhancement of the amount of maintenance.

Hon'ble Apex Court in the case of Shail Kumari Devi and another Vs. Krishan Bhagwan Pathak @ Kishun B. Pathak [2009 (67) ACC 560 in paragraph nos. 43 and 44 observed as follows:

"43. Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to the latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the Court is called upon to consider whether she was justified to live separately from her husband and still claim maintenance from him? If the reply is in the affirmative, she is entitled to claim maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application and there is nothing which requires recording of 'special reasons' though he must record reasons as envisaged by sub-section (6) of section 354 of the Code in support of the order passed by him.

44. We, therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the Court. In our Judgment, no such requirement can be read in sub-section (1) of section 125 of the Code in absence of express provision to that effect."

Hon'ble Apex Court clearly observed that it is open to the Magistrate to award maintenance from the date of the application and there is nothing which requires recording of special reasons though he must record reasons as envisaged by section 354 of sub-section 6 of the Code in support of the order passed by him. Hon'ble Apex Court in paragraph no.44 of the said decision was of the view that no special reasons, however, are required to be recorded by the Court.

A perusal of the impugned judgment and order makes it evident that the learned trial Judge after considering the relevant aspect of the case, passed the impugned judgment and order. Sufficient reasons are recorded for awarding maintenance in the impugned judgment and order in support thereof.

The last submission of the learned counsel for the revisionist is that the husband paid certain amount as interim maintenance during pendency of the maintenance proceedings, the said amount may be ordered to be adjusted.

After hearing both the sides, the Family Court is directed to adjust the amount of interim maintenance, if any, paid by the husband.

There is no illegality or irregularity in the impugned judgment and order. The impugned judgment and order is just, legal and correct one and based on proper appreciation of the evidence on record. There is no sufficient reason to discard the findings recorded by the court below. The impugned judgment and order dated 14.12.2009 passed by the Additional Principal Judge, Family Court, Kanpur, in Case No.585 of 2001, under Section 125 Cr.P.C. is affirmed. The instant criminal revision is, accordingly, dismissed.

Order Date :- 8.7.2013

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