Jitendra Kumar vs State Of U.P. & 2 Others
2014 Latest Caselaw 6997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved
 
Court No. - 46
 

 
Case :- CRIMINAL REVISION No. - 933 of 2013
 

 
Revisionist :- Jitendra Kumar
 
Opposite Party :- State Of U.P. & 2 Others
 
Counsel for Revisionist :- H.N. Sharma
 
Counsel for Opposite Party :- Govt. Advocate, Amit Kumar Srivastava
 

 
Hon'ble Kalimullah Khan,J.

This criminal revision no.- 933 of 2013 under Section 397/ 401 Cr.P.C. has been preferred by opposite party-revisionist Jitendra Kumar against his wife Smt. Shashi Singh respondent no.-1 and Aditya (minor) respondent no.-2 and State of U.P. respondent no.-3 challenging the legality, correctness and propriety of the impugned judgment and order dated 14.3.2013 passed by Family Court/ Additional District Judge, Court No. 14, Allahabad in matrimonial case no. 47 of 2006 under Section 125 Cr.P.C. awarding monthly allowance of a sum of Rs.3,000/- to the wife and Rs.2,000/- to his son payable from the date of application.

Respondent Nos.1 and 2 made an application under Section 125 Cr.P.C. before the Family Court with a pleading that revisionist Jitendra Kumar solemnized his marriage with Smt. Shashi Singh on 16.2.1997 as per the Hindu Rites and Rituals. Out of this wedlock, a son Aditya was born on 18.11.2004. Revisionist and his relatives started torturing and practicing cruelty against Smt. Shashi Singh in connection with demand of dowry. They tried to set her ablaze after sprinkling kerosene oil. He is alcoholic and gambler and in this connection he had already sold the ornaments of his wife. Whenever she raised objection, she was assaulted and kept hungry. Mental torturing and domestic violence had been her fate. Ultimately, she came to her father's house along with her son. She is unable to maintain herself whereas her husband Jitendra Kumar is able to maintain her and her child but he is deliberately neglecting to maintain them. He is an electrician and on the date of filing of application he was earning Rs.5,000/- per month but during the course of proceedings as per the evidence of Smt. Shashi Singh, he raised his earnings up to Rs.10,000/- per month.

Jitendra Kumar, opposite party-revisionist filed his W.S. wherein he denied allegation of torturing, demand of dowry and pleaded that his father and father-in-law were friends inter-se and were employees in the Office of Accountant General, Allahabad, U.P. They had arranged his marriage with Smt. Shashi Singh without any demand of dowry. However, his father-in-law had given certain goods in dowry and when he came for the first time for Vidayi to his daughter, he brought a Hero-cycle with him. Smt. Shashi Singh was suffering from mental sickness. Her illness continued and she used to be unconscious at intervals. He provided medical treatments to her and she became cured but she had been accustomed to lead a comfort and luxurious life, therefore, she does not want to live with him at his house. He has already filed a suit for restitution of his conjugal rights. She had also filed a criminal case against him under Section 498-A, 323, 504 and 506 I.P.C. in which he was in jail for a considerable length of time. She earns Rs.6,000/- per month from Tailoring and Embroidery and from management of the lodge of her father and in this way she is able to maintain herself and her child. Her application made under Section 125 Cr.P.C. deserves to be rejected.

In order to prove their case, applicant Smt. Shashi Singh examined herself as P.W.-1 and Jitendra Kumar examined himself as D.W.-1.

However, Jitendra Kumar absented himself from the court on the dates fixed for arguments. Hence, learned trial court heard learned next friend of applicant Smt. Shashi Singh and perused the record.

After considering the materials available on record, learned trial court vide order dated 14.3.2013 has allowed the application under Section 125 Cr.P.C. from the date it was filed and directed Jitendra Kumar to pay Rs.3,000/- to his wife and Rs.2,000/- to their son Aditya as monthly allowance. He also provided that the amount of arrears would be payable within three months in three equal installments.

Feeling aggrieved, this criminal revision has been filed.

Vide order dated 8.4.2013 an interim order was passed by this Court that "till the next date of listing the operation of impugned order dated 14.3.2013 shall remain stayed provided the revisionist pays/ deposits maintenance allowance at the rate of Rs.2,000/- per month to his wife Smt. Shashi Singh (respondent no.-1) and at the rate of Rs.1,500/- per month to his minor son Aditya (respondent no.-2) regularly with effect from the date of application under Section 125 Cr.P.C. The current maintenance allowance with effect from 1st April, 2013 shall be paid regularly by 10th of each month and entire arrears be paid within a period of three months. In case of default, the interim order shall automatically come to an end. The amount deposited by the revisionist may be withdrawn by opposite party no.-3."

An application dated 24.5.2013 was filed on behalf of the opposite party nos. 1 and 2 to vacate the said order dated 8.4.2013 passed by this Court or to pass such other and further order which this Hon'ble court may deem fit and proper in the circumstances of the case.

On the other hand, on 24.5.2013, an application was made by revisionist to exonerate him from paying arrears of maintenance allowances for the period from the date of application under Section 125 Cr.P.C. till the date of impugned order dated 14.3.2013 or may be pleased to grant such other interim relief as is deemed proper.

On 12.5.2014, during the course of hearing, learned counsel for revisionist submitted that there are chances of amicable settlement in between the parties. The amount of arrears, according to the respondents, is Rs.4,30,000/- (Rupees four lac thirty thousand) whereas according to him it is Rs.3,00,000/- execution proceeding is pending before executing Court. Learned counsel for the revisionist has made a proposal that after accepting the amount of Rs.1,00,000/- towards the arrears of maintenance, the balance amount of arrears be permitted to be paid in installments. In order to pay the aforesaid Rs.1,00,000/-, he sought and allowed two days time with the consent of learned counsel for the respondents. Therefore, it was again put up on 15.5.2014 at 10:00 A.M. sharp for payments and further orders. On 15.5.2014 both the parties along with their learned counsel appeared in the Court and Jitendra Kumar revisionist paid Rs.1,00,000/- (Ruppes one lac) cash to his wife Smt. Shashi Singh towards the arrears of maintenance. She accepted the amount in presence of her father before the Court. The same day heard learned counsel for the revisionist and learned counsel for the respondent nos.- 1 and 2 and also learned A.G.A. on the merit of the revision as well as on the modification application and stay vacation application referred to above.

Indisputably, revisionist has admitted in his W.S. and evidence that Smt. Shashi Singh respondent no.-1 is his legally wedded wife and Aditya respondent no.-2, was born out of this wedlock who was aged about eight years on the date of passing the impugned judgment and order. He has also admitted that his wife and son are living separately from him and they are living at his father-in-laws' house. He had neither pleaded nor given evidence that he is non-earning member. He could not adduce any reliable evidence showing that Smt. Shashi Singh is an earning member or she has any independent source of income so as to be able to maintain herself and her minor son. He does not say that he had paid even a single penny to his wife and child since they are living at his in-laws' house. She has been cross-examined at length but nothing has been fetched out from her mouth to establish that she is living with her child at her father's house without sufficient cause. She has deposed that in connection with the demand of dowry, her husband Jitendra Kumar was continuously torturing her and practicing cruelty upon her. Jitendra Kumar is habitual to drink and a man of bad habits. He plays gambling and has already lost her valuables including her ornaments. Learned trial court has given categorical finding on each aspect of the matter and came to the conclusion for the reasons recorded in the impugned judgment and order that applicants/ respondents have sufficient cause to live separately from Jitendra Kumar who having sufficient means did not pay her even a single penny towards their maintenance although he earns at least Rs.10,000/- per month as deposed to by Smt. Shashi Singh. Applicants have proved their case against Jitendra Kumar and they are entitled to maintenance from him.

Learned counsel for the revisionist has submitted that if the learned trial court orders to pay maintenance from the date of application then he should record the reasons for the same. Here, in the case, learned trial court has awarded maintenance from the date of filing the application under Section 125 Cr.P.C. but has not recorded the reasons. Therefore, the impugned judgment is bad in law and deserves to be set aside. He has relied on case laws- Ram Kishan vs. Judge, Family Court, Moradabad and others 2002 Allahabad JIC 897, Smt. Bina Devi vs. State of U.P. and another 2010 (1) Allahabad JIC 499 and Raju vs. State of U.P. and another 2010 (1) Allahabad JIC 645. In all the above three cases, this Court has held that for awarding maintenance from the date of application, trial court is required to record reasons for it and if the reasons are not recorded then the maintenance is to be paid from the date of order. All the aforesaid three case law are Single Bench judgment of this Court.

On the other hand, learned counsel for the applicants-respondents have relied on case laws- Jagat Narain vs. Sessions Judge, Mainpuri and others 1998 (36) ACC 282, Shahbuddin vs. State of U.P. 2006 (54) ACC 637 and Pyla Mutyalamma @ Satyavathi vs. Pyla Suri Demudu and another 2011 (75) ACC 210 (Supreme Court).

In case of Jagat Narain vs. Sessions Judge, Manipuri and others (supra) number of decisions of different High Courts and Hon'ble Supreme Court have been discussed. The perusal of which shows that Hon'ble Supreme Court in Prem Lata vs Ram Niranjan Singh 1989 Suppl. (2) SCC 731, held that there was no warrant for the High Court for reducing the amount and it should not have modified the order of the trial court directing payment of maintenance from the date of application. The said order of the Apex Court reads thus:-

"1. Special Leave granted. Heard both the sides.

2. The High Court should have shown better awareness of the plight of women and should not have interfered with an order of maintenance passed in favour of the wife by the trial court in exercise of its revisionist jurisdiction. There was no warrant for reducing the amount of maintenance awarded by the trial court from Rs. 400/- per month to Rs. 350/- per month. So also, the High Court should not have modified the order of the trial court by directing that maintenance should be paid from the date of the order of the trial court (May 10, 1983) instead of the date of application (September 7, 1979). We, accordingly, allow this appeal, set aside the order of the High Court and restore the order passed by the trial Court directing payment of monthly allowance at Rs.400/- per month from the date of application viz. September 7, 1979. Payment of arrears shall be made latest by March 31, 1989 failure to do so will amount to contempt of this Court. There will be no order as to costs."

In Satish Chandra Gupta vs. Smt. Aneeta 1994 ACC 563, Virendra Saran, J. disagreed with the view taken by Bhargava, J. observing as follows:-

"Speaking for myself I am unable to subscribe to the above interpretation of Section 125 (2) Cr.P.C. put by S.R. Bhargava, J. and I respectfully disagree with the same. When Section 125(2), Cr.P.C. clearly speaks of two options i.e. maintenance shall be payable from the date of order and if so directed from the date of application, both the options are open to the Court. The legislature has left it to the discretion of the Magistrate to choose any one of the alternatives considering the facts of each case. However, it is not necessary to refer the case of Dharmendra Kumar Gupta for reconsideration by a larger bench for the simple reason that a revisional Court can always look for reasons itself and in suitable cases modify the order passed by the learned Magistrate".

In para 19 of Jagat Narain vs. Sessions Judge, Mainpuri and others (supra), the Division Bench of this Court has held that Section 125(2) of the Code is not mandatory in the sense that the Magistrate while granting maintenance from the date of the application of the destitute wife must assign reasons for doing so though it would have been better if he does so. The aforesaid para 19 reads as under:-

"19. Agreeing with the views taken by Kerala High Court, Bombay High Court, Andhra Pradesh High Court, Punjab and Haryana High Court and Delhi High Court, referred to in paragraph 16 referred to as above, in our considered view Section 125(2) of the Code is not mandatory in the sense that the Magistrate while granting maintenance from the date of the application of the destitute wife must assign reasons for doing so though it would have been better if he does so. Non-assigning of the reasons by itself will not vitiate his order and give a handle to the revisional court to set aside such an order on this ground alone. Revisional jurisdiction is a discretionary remedy and if the materials are on the record justifying grant of maintenance from the date of application filed by the wife or on behalf of the children it will refuse to exercise its discretion in favour of the revisionist-husband or in a petition filed by the husband under Section 482 of the Code of Criminal Procedure."

In case of Shahbuddin vs. State of U.P. and others 2006 (54) ACC 637 (supra), this Court has held that it is not mandatory for the Magistrate to give reasons while granting maintenance from the date of application.

In Bhuwan Mohan Singh vs. Meena and others 2014 STPL (Web) 467 SC, the Hon'ble Supreme Court has made a detailed discussions on this point and came to the conclusion 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.

In the case in hand, undisputedly, revisionist has not paid even a single penny to his wife towards their maintenance since the date she, under unavoidable circumstances, left his house and took shelter in her father's house along with her child. Therefore, there was sufficient reason in the judicial mind of the learned court below to allow the application under Section 125 Cr.P.C. from the date of its filing.

As noted above, revisionist has already made payment of Rs.1,00,000/- (Rupees One lac) in cash to his wife towards dues of arrears and has made an application for modification of the mode of payment of arrears in installments. Adopting a balanced approach to protect both the parties which is in the broader interest of destitute lady Smt. Shashi Singh, respondent no.-1 and her minor son Aditya respondent no.-2, payment in easy installments may be provided so that revisionist may pay and clear the arrears conveniently and entire dues of arrears may be realized from him without entering into further litigation of execution. Therefore, prayer for payment of arrears in easy installment is hereby allowed. Interim order dated 8.4.2013 passed by this Court is vacated.

Revisionist Jitendra Kumar is directed to pay per month maintenance allowance, with effect from the date of application made under Section 125 Cr.P.C., to his wife (respondent no.1) and child (respondent no.2) as per the impugned judgment and order dated 14.3.2013 passed by learned court below. He is further directed to pay and clear the arrears of maintenance within three years in six equal installments to be counted from today. Failure to do so will amount to contempt of this Court. There will be no order as to costs.

Impugned judgment and order dated 14.3.2013 passed by learned Family Court Judge is modified to the aforesaid extent and criminal revision along with modification and stay vacation application stands disposed of accordingly.

Order Date :-25.9.2014

Atmesh