Smt. Pushpa Devi & Others vs State Of U.P. & Another
2016 Latest Caselaw 2152 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 13
 
Case :- CRIMINAL REVISION No. - 872 of 2013
 
Revisionist :- Smt. Pushpa Devi & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Ashok Kumar Yadav
 
Counsel for Opposite Party :- Govt. Advocate,Shad Khan
 
Hon'ble Abhai Kumar, J.

List revised.

None is present to press this revision from opposite party no. 2 even in the revised call.

Counsel for the revisionist is present.

Heard and perused the record.

This criminal revision under Section 397/401 of Cr.P.C has been filed  by revisionist - Smt. Pushpa Devi and others Vs. State of U.P. & another, challenging the order dated 22.01.2013 passed by Additional Principal Judge, Family Court, Allahabad in Maintenance Case No. 232 of 2006 (Smt. Pushpa Devi & Ors. Vs. Ram Bahadur), under Sections 125 Cr.P.C.

The brief facts of the case are as follows:-

The revisionist filed an application under Section 125 Cr.P.C for maintenance of herself being the wife as applicant no. 1 and her children - applicant nos. 2 & 3. As per application under Section 125 Cr.P.C, applicant no. 1 is legally wedded wife of opposite party whereas applicant nos. 2 to 4 are children of applicant no. 1 and opposite party. From the very beginning the behaviour of opposite party was not good with the applicant no. 1 and used to torture mentally and physically and he is not maintaining her as well as children and they are living in the house of her parents and near relatives maintaining them. It is also stated that the income of the opposite party is about Rs.50,000/- per month from the work of electric mechanic at Mumbai and beside that there is agricultural income also. The applicant demanded Rs.10,000/- for maintenance as well as for education of their kids. Marriage as well as children are admitted by opposite party. It is denied that applicants were not kept properly rather the allegations are made against the applicant no. 1 - wife of the opposite party. It is also stated that she on her own free will left the house of the opposite party along with children. After exchange of pleadings six issues were framed:-

Issue no. 1 was regarding the marriage of applicant no. 1 and that is decided in affirmative and this needs not interfere.

Issue no. 2 regarding desertion by applicant without any reason and it is found that applicant no. 1 is living separately and with her own will and without any proper reason.

Issue no. 3 is regarding inability of applicants to maintain themselves.

It is found that applicant no. 1 is a teacher and can maintain her very well and it is also held that applicant nos. 2, 3 and 4 are not having sufficient needs to maintain themselves.

Issue no. 4 is regarding income of opposite party and it is held that opposite party is having sufficient income.

Issue no. 5 is made regarding neglect by opposite party of applicant. The issue is decided against the opposite party and it is held that opposite party is deliberately did not care her children and did not pay anything for their maintenance.

Issue no. 6 is relief issue and it is decided partly in favour of the applicant though the applicant no. 1 opposite party was denied, any maintenance, but applicant no. 2 to 4 were awarded monthly maintenance of Rs.1,000/- each.

So far the maintenance of the children are concerned, this is not challenged in the present revision, but the denial of the maintenance to the wife is being challenged on the ground that she is not able to maintain herself and she is not having income and conclusion drawn against this by the Family Court is not correct and proper

Issue no. 2 is regarding desertion by the wife and this issued decided in favour of the husband. Reasons recorded for that by the Family Judge are two folds.

1. That present case was instituted after sixteen years of marriage and the wife lived happily with the husband. During that period, three children were born and from the year 2004, she is living separately and also denied to go to the husband.

2. The second reason given by the Family Court is regarding non-information of the incident to the police. It is also recorded that no suit for restitution of conjugal rights were ever filed by the wife so adverse inference may be be drawn against him. This view taken by the Family Court cannot be accepted, if the wife lived happily for sixteen years with the husband then what may be the reasons for her, for not going to her husband's house and deserting him. Interesting fact is that the couple were living in Mumbai in January, 2006. It is said that the wife left the house of the husband at Mumbai on 12.6.2006 and went her parents' house. When he contacted his in-laws about whereabouts of his wife, then they threatened him. Only in October, 2006, husband came to know the fact that his wife is living at her parental house. It is said that the efforts to trace out his wife were made between June to October, 2006, but it is not revealed by the husband that how the efforts were made. So it can very well be said that husband did not care his wife after she left Mumbai for whatever the reason for that. Moreover, the suit for restitution for conjugal rights was also not filed by the husband and that can be viz-a-viz read against husband. The wife did not file any complaint against husband, does not mean that she was not having at grievance. In matrimonial cases, wife and her parents did not want to escalate the problems, so she might not file any criminal case or lodged any F.I.R against the husband, so that the matter may be decided amicably.

From the above discussions, it is abundantly clear that the findings returned by the Family Court regarding desertion and that she was living separately with her own will is erroneous and can not be maintained. So it is is held that it was the husband who was responsible for deserting the wife without any proper reason.

While deciding issue no. 3, learned Family Court passed order regarding denial of maintenance to the wife upon admission of appellant regarding giving education to the children. But I think the observation of the Family Court is beyond comprehension. If somebody is teaching children that can not be said that wife is also getting remuneration for that. Appellant ? Smt. Pushpa Devi has categorically denied of receiving any income from teaching of children and the inference drawn by the Family Court regarding this that wife is earning sufficiently to maintain herself is erroneous. So this point of the Family Court is also not maintainable and is liable to be reversed.

From the finding of issue no. 4, it can be said that opposite party was having sufficient means to maintain his wife. Learned lower court assessed the income of the opposite party - respondent as six thousand monthly on the basis of Rs. 200/- per day remuneration which he can receive as a labour. There is also agricultural income of the opposite party. Moreover the opposite party works at Mumbai and certainly earning more than Rs.6,000/-. Therefore, in the facts and circumstances of the case, the husband-respondent can very well pay the maintenance to her wife.

The revision is allowed and opposite party is directed to pay Rs. 2000/- per month to the wife as maintenance from the date from which children were awarded maintenance.

The order dated 22.01.2013 passed by Additional Principal Family Judge, Allahabad in Maintenance Case no. 323 of 2006 (Smt. Pushpa Devi & Ors. Vs. Ram Bahadur) under Section 125 Cr.P.C is reversed so far it relates to non awarding the maintenance to the revisionist no. 1 ? wife Smt. Pushpa Devi.

It is contended by the learned counsel for the revisionists that opposite party is not even paying single penny that was awarded as maintenance to the children. Although the execution application for that can be maintained before the concerned Family Court and the revisionist is advised to make an application in this regard and if any application already made, the concerned court shall take appropriate action and expedite the matter.

Order Date :- 3.5.2016

Vinod.