Sirajuddin vs State Of U.P. & Another
2016 Latest Caselaw 2382 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
										  AFR
 
Court No. - 27
 

 
Case :- CRIMINAL REVISION No. - 1219 of 2016
 

 
Revisionist :- Sirajuddin
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Karan Singh Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This revision has been preferred against the order dated 05.03.2016 passed by the learned Principal Judge, Family Court, Jhansi in Case No. 217 of 2011 ( Smt. Shamim Ara @ Sano Begum Vs. Sirajuddin) under Section 125 Cr.P.C., PS Navabad, District Jhansi.

2. The counsel for the revisionist has argued that the revisionist has retired from the post of  peon.  The learned lower Court has wrongly drawn an inference that the opposite party No. 2 has no source of income.  He also submits that the learned Court below has not taken into consideration that the revisionist who is pensioner and is only getting Rs.20,000/- per month. He is aged about more than 60 years.  In this view of the matter, the order passed by the learned Court below is liable to be set aside.

3. The counsel for the revisionist has further placed reliance upon the report of Tehilsidar, which is Annexure - 3.  In the said report it is mentioned that  there are 7-8 rooms in the premises and the rent is Rs.10,000/- to Rs.12,000/- per month.  The counsel for revisionist submits that  as per the report of Tehsildar (Annexure-3),  since there was a rental income of Rs.10,000/- to Rs.12,000/- per month in year 2014, which now must have increased, hence the opposite party No. 2 is not entitled to any maintenance and the order under revision is liable to be set aside.

4. The learned AGA has submitted that the learned lower Court has considered this aspect of the matter about income of the opposite party No. 2 being enjoyed from rental resources and has found serious infirmities and contradictions in the statement of alleged tenant.

5. The report of Tehsildar, Annexure-3 is addressed to whom, is not clear.  Besides, it is  a report based on factual aspect of the matter only, which could by no stretch of imagination said to be a public document without any further proof.  Hence, it cannot be relied upon and it can also not be presumed that the rent being realized in year 2014 has immensely increased in year 2016.

6. The learned trial Court has found that Abdul Gaffar is not a reliable witness in as much as he has given contradictory statements.  Even if for the sake of argument the whole case of revisionist is taken to be true and the income of opposite party No. 2 is taken to be Rs.10,000/- to Rs.12,000/- per month from rent, in that event also the opposite party No. 2 is entitled to live as per the status which is being enjoyed by the revisionist himself. He is enjoying pension of Rs.20,000/- per month.  Hence, a meagre amount of Rs.1500/- per month awarded as maintenance to the opposite party No. 2 is much on the lower side.

7. Then, it has also been contended by the learned counsel for revisionist that the wife is living away from her husband without reasonable and sufficient cause.

8. The counsel for the revisionist also is placing reliance upon VJ Thomas Vs. State of Kerala, AIR 1970 Ker 273 particularly on para -8 of the judgment, which reads as under:-

"8. Section 76 of the Evidence Act states that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof:-

"Statement recorded or orders passed by the Income-tax Officers are public documents under Section 74. Under Section 76 it is not necessary that the public generally must have a right to inspect. It is sufficient if there is any single person who has a right to inspect". (Vide : Buchibai v. Nagpur University AIR 1946 Nag 377). Similarly, it is held in Kaderkutty v. Agricultural Income-tax Officer, Tellicherry that the records in the assessment file constitute public documents within the meaning of Section 74 as forming the acts or records of the acts of a public officer or of an official body. It is pointed out that the decision in Martin v. London County Council (1929) 141 LT 120 shows that no duty can exist to prosecute for a criminal offence. The question in that case was whether the act of prosecution was a public duty within the meaning of Public Authorities Protection Act 1893 of England. The plaintiff in that case, the suit being one for damages for malicious prosecution, was earlier unsuccessfully prosecuted for stealing certain stamps, the defendant pleaded that the suit was barred on the ground that in prosecuting the plaintiff they were acting in execution of a public duty within the moaning of Section 1 (a) of the Act, which stated:

"Any action...against any person for any act, done in pursuance, or execution .. . . of any Act of Parliament, or of any public duty or authority, in respect of any alleged neglect; and so on shall not lie unless it is commenced within six months next after the act....

Avory, J. held that the public duty referred to in the section meant a duty which could be legally enforced, having regard particularly to the succeeding words relating to a neglect or default of the duty, and that the duty to prosecute for an offence was not a public duty within the statute. We cannot see how the principle of that decision can apply to the instant case. Under the Criminal Procedure Code the police is charged with the duty of investigating offences; so also the magistrate with a duty to record a confession or statement by a person during the course of investigation."

9. The aforesaid judgment has no application to the present case. So far as the report of Tehsildar, Annexure - 3, is concerned, there is nothing on record to show that this is a certified copy. Nor the requirements of law have been complied with in case of procuring Annexure -3.  But, even for the sake of argument if Annexure - 3 is relied upon even then it would not come to the rescue of the revisionists. 

10. The learned counsel for revisionist has also placed reliance upon a criminal revision No. 258 of 2007 filed by wife in Kamini and others Vs. State of U.P. and another, 2014 (1) ACR 409, which has been dismissed by this Court. The relied upon judgment does not help the revisionist as in that case the husband has been able to prove before the trial Court that not only the wife had been living in adultery but she had deserted the matrimonial home on her own free will. The facts of the present case are different. Here, the wife has been found by the learned trial Court entitled to get maintenance amount from the revisionist in as much as the revisionist harassed her and is not ready to maintain her. The learned trial Court has also held that admittedly the revisionist is living separately from opposite party No. 2 in House No. CL 13 and opposite party No. 2 is living in the house No. CL 14 of revisionist in which earlier he was residing.

11. The matter involved in this case pertains to Section 125 Cr.P.C. which is reproduced below:-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

12. From the perusal of provisions of Section 125 Cr.P.C., it becomes evident that the learned trial Court has passed the impugned order fully in consonance with the ingredients of the aforesaid Section. The impugned order does not suffer from any illegality, irregularity or impropriety. Thus, no ground has been made out to interfere with the order impugned in this revision.

13. The revision has no merit and is accordingly dismissed.

Order Date :- 9.5.2016

LBY