Allahabad High Court
Smt. Sangeeta & Others vs State Of U.P. & Another on 12 September, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 48
Case :- CRIMINAL MISC. WRIT PETITION No. - 17960 of 2012
Petitioners :- Smt. Sangeeta & Others
Respondent :- State Of U.P. & Another
Counsel for Petitioner :- Mahesh Singh, Sanjeev Singh
Counsel for Respondent :- Govt. Advocate, R.K. Mishra, Rakesh Kumar Mishra
Hon'ble Pramod Kumar Srivastava,J.
1. Criminal Misc. Case No. 123 of 2011, Smt. Sangeeta and others Vs. Sunil Kumar under section 125 CrPC was filed by petitioner no.-1 Smt. Sangeeta for herself and her three children namely Manish, Nidhi and Himanshi, for recovery of maintenance from her husband Sunil Kumar Sharma. In said case, trial court had afforded opportunity of hearing to the parties, accepted evidences and after appreciating the same the same, the court of Judicial Magistrate (/Additional Civil Judge, Junior Division), Court No.-2, Bulandshahr had passed judgment dated 18.06.2012 by which said application u/s 125 CrPC was rejected. Against said judgment of trial court, the Criminal Revision No. 320 of 2012 (Smt. Sangeeta and others Vs. State of UP and Another) was preferred which was heard and dismissed by the judgment dated 7.11.2012 of Additional Sessions Judge, Court No.-17, Bulandshahr. By this judgment, revisional court had confirmed findings of the trial court.
2. Against the aforesaid judgments, petitioner has filed present writ petition by which request was made for quashing the judgments of both the lower courts and for awarding maintenance allowance to petitioner no.-1 from her husband (respondent no.-2).
3. Counsel for the petitioner contended that judgments of lower courts are erroneous and perverse because trial court had not considered the statements of Smt. Sushma, the sister-in-law (Bhabhi) of respondent no.-2, which was given in another criminal proceedings under section 202 CrPC. He further contended that respondent no.-2 (husband) had specifically mentioned in his objection against application before trial court that he is labourer. His contention is that children of petitioner no.-1 and respondent no.-2 are carrying out their studies in a public school and a labourer cannot afford fees and maintenance of such studies, so his objections should not be relied. His further contention is that judgment of lower court, especially of the trial court, are factually incorrect and perverse, and therefore those orders should be quashed and writ petition should be allowed.
4. Counsel for respondent no.-2 contended that there is evidence that petitioner no.-1 and her children are residing in a joint house of respondent no.-2. The address of petitioner and respondent no.-2 are same. He further contended that during evidence before the trial court, petitioner had admitted her living in the house of respondent no.-2 (husband). He also submitted that during evidence the son of petitioner no.-1 had given statement that he, his mother, brother and sister are maintained by his father (respondent no.-2), who also pays their fees of School. His submission is that in these circumstances, the writ petition should be dismissed.
5. From perusal of records available before this court,it is found that there has been specific evidence that residence of petitioners is in the joint house of respondent no.-2. There was evidence to the effect that respondent no.-2 maintains them and bear their expenses. In these circumstances, it is immaterial as to whether objection made before trail court by respondent no.-2. was factually correct or not, if there is evidence that petitioner no.-1 is residing in house of her husband (respondent no.-2) with her children and her husband is maintaining them and bearing their expenses. There is no one else who maintains petitioners. In these circumstances there is no justification for granting relief of maintenance to petitioners. These points were properly considered by trial court, and its findings are not infirm.
6. The courts concerned do not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and orders. It is not an appeal wherein scruitiny of evidence is possible, neither the writ jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible. The impugned orders apparently are presentable, without any such infirmity which may render it completely perverse or unacceptable; and when there is no failure of justice or infringement of any legal right, the interference cannot be had in exercise of writ jurisdiction.
7. A perusal of the impugned judgment reveals that learned Magistrate had appreciated the facts and evidences of the case and then after being satisfied about the facts relating to case, had passed the judgment. From a perusal of the records it appears that conclusions read by learned Magistrate are based on available evidences and logical conclusions. Said judgment was rightly affirmed by the revisional Court. There appears no irregularity in procedure adopted by the trial court. So there is no justification for interference in the impugned judgments.
8. In view of above, writ petition is dismissed.
Order Date :- 12.9.2016
SKS
