Allahabad High Court
Smt. Devrati Devi vs State Of U.P. And Anr. on 20 December, 2017
Bench: Ravindra Nath Kakkar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
A. F. R.
Court No. - 55
Case :- CRIMINAL REVISION No. - 68 of 2014
Revisionist :- Smt. Devrati Devi
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Manoj Yadav
Counsel for Opposite Party :- Govt. Advocate,Kamal Kumar Singh
Hon'ble Ravindra Nath Kakkar,J.
Heard learned counsel for the parties.
This criminal revision has been preferred against the judgement and order dated 08.10.2013 passed by Additional Chief Judicial Magistrate 1st Ballia in Case No. 11 of 2011 (Devrati Vs. Dev Saran), under Section 125 Cr.P.C., PS-Bheempura, District-Ballia whereby the trial judge has allowed the application and awarded maintenance of Rs. 1,000/- per month in favour of the revisionist.
It is contended by learned counsel for the revisionist that award of maintenance of Rs. 1,000/- per month is very meagre amount. The next point of contention is that the maintenance has been awarded in favour of the revisionist by the trial court from the date of the order and not from the date of application. It is next contended that opposite party no. 2 (husband of the revisionist-applicant) is presently earning Rs. 12 ,000/- as pension and despite that only Rs. 1,000/- per month has been awarded as maintenance allowance by the trial judge. It is next contended that learned trial judge as per material available on record found that opposite party no. 2 earned Rs. 8,000/- per month by his pension. It is next contended that applicant/revisionist is an old aged lady of 59 years and she is struggling for her livelihood and not able to maintain herself.
Rebutting the above arguments learned counsel for the opposite party no. 2 contended that opposite party no. 2 was constable in Army and he retired from service in the year 2003. After retirement he came back to his home. The son of the opposite party no. 2 Hukum Chand is aged about 40 years and after retirement, opposite party no. 2 established a merchant shop for the purpose of business of his son and also given entire retiral benefits drawn by the Department to his wife and son. It is further submitted that initially the basic pension of the opposite party no. 2 was Rs. 2091/- per month in the year 2003 and he was drawing pension in the year, 2012 Rs. 6,933/- per month and at present he is drawing pension Rs.9,733/- per month by the department. In support of it a letter of Accountant Officer regarding the pension of the opposite party no. 2 and Bank Statement showing his pension are collectively filed as Annexure No. 1 to the counter affidavit filed by him. It is further contended that opposite party no. 2 is an old aged person of about 65 years suffering from various disease and he is ready to pay the maintenance amount which has been awarded by the learned Magistrate in application under Section 125 Cr.P.C. by the impugned judgement and order dated 08.10.2013 and in addition to it, it is contended on behalf of opposite party no. 2 that revisionist has not filed an application for enhancement of maintenance award under Section 127 Cr.P.C. which is available to her under the Code of Criminal Procedure but due to mala fide intention, she approached this Court for the enhancement of the maintenance amount without any reasonable cause. Hence, the present criminal revision is not maintainable and is liable to be dismissed.
In light of the above contention as raised by both the parties, I have perused the impugned judgement.
Perusal of the impugned judgement reveals that trial court after evaluating the material in the form of evidence, oral as well as documentary, came to the conclusion that applicant/revisionist is legally wedded wife of opposite party no. 2. Further concluded that there is reasonable ground for the applicant/revisionist for separate living from her husband. Further, the trial judge has awarded maintenance amount of Rs. 1,000/- per month in favour of the revisionist/applicant on the basis of income of the applicant/revisionist and non-applicant/opposite party no. 2. It is an admitted fact that opposite party no. 2 is a retired Army Constable and as per his admission presently he is earning Rs. 9,733/- per month as pension and in the year 2012 he was drawing Rs. 6,933/- per month as pension. Further, it transpires from the record that no interim maintenance was granted to the applicant/revisionist at the time of filing an application under Section 125 Cr.P.C. and the impugned order was passed on 08.10.2013 and from the date of the impugned order the maintenance award was granted in favour of the revisionist.
It is an established law that it is a moral and legal duty of the husband to maintain her wife. Considering the income of the applicant and non-applicant, social status of the parties and the fact and circumstances of this case, if all these things are to be taken in totality, I am of the view that in case the opposite party no. 2 is drawing pension to the tune of Rs. 9,733/- per month as pension, the awarded amount of maintenance could not be said to be sufficient. So far as, the argument of the learned counsel for the revisionist that maintenance award has been granted from the date of the order and not from the date of application, firstly the reason has been assigned on the last paragraph of the impugned judgement/order of the court below and secondly the provision contained in Section 125(2) Cr.P.C. states that:-
" Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be."
Therefore, it is evident that the grant of maintenance from the date of the application requires reasoning in support of it. The grant of maintenance from the date of the order is the rule. In addition to it, learned court below has supported his order by giving the reason for granting maintenance to the applicant/revisionist from the date of the order.
Having considered all the facts and circumstances and taking into account the income by way of pension of opposite party no. 2, I am of the view that amount of Rs. 2,000/- per month will serve the purpose of maintenance of the applicant/revisionist. Therefore, the impugned order of granting maintenance is modified from Rs. 1,000/- per month to Rs. 2,000/- per month from the date of the impugned judgement and order of the court below. Further, I am of the view that arrears of the enhance amount be paid to the applicant/revisionist in six instalments subject to condition that opposite party no. 2 shall pay the enhance amount of Rs. 2,000/- per month regularly. Further, the amount so paid in execution of the impugned order is to be adjusted.
With the above directions, this revision is disposed of finally.
Order Date :- 20.12.2017/AKT
