Vivek Malva vs State Of U.P. And Anr.
2017 Latest Caselaw 4051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 53
 

 
Case :- CRIMINAL REVISION No. - 2962 of 2011
 

 
Revisionist :- Vivek Malva
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Arvind Mishra
 
Counsel for Opposite Party :- Govt. Advocate,K.M.Garg
 

 
Hon'ble Harsh Kumar,J.

Heard Sri Arvind Mishra, learned counsel for the revisionist, Sri K.M. Garg, learned counsel for the opposite party no.2, learned AGA for the State and perused the record.

The revision has been filed against the order dated 1.7.2011 passed by Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Court No.2, Bijnor in Case No.1 of 2011, under section 125 Cr.P.C., granting Rs.1500/- per month as interim maintenance to the opposite party no.2 from the date of filing of the application under section 125 Cr.P.C.

Learned counsel for the revisionist submitted that marriage between the revisionist and opposite pate no.2 has been dissolved by a decree dated 18.2.2011 passed by Judge, Family Court, Haridwar in Matrimonial Petition No.160 of 2010, Vivek Malva Vs. Reshma @ Sonia; that after dissolution of marriage, the relationship of husband and wife does not exist and the opposite party no.2 is no more wife of the revisionist and so is not entitled for any maintenance, interim or final; that the divorce decree was passed on the ground that the opposite party no.2 is living in adultery; that the impugned order of granting maintenance to the opposite party no.2, is wrong and illegal and is liable to be set aside; that moreover, the monthly salary of revisionist was Rs.3000/- per month and so the grant of interim maintenance at the rate of Rs.1500/- per month is highly excessive, particularly in view of the fact that a son was born out of the wedlock between the revisionist and opposite party no.2, who is living with the revisionist.

Per contra, learned AGA and learned counsel for the opposite party no.2 supported the impugned order and contended that the exparte divorce decree obtained by the revisionist is without jurisdiction; that it is wrong to say that the opposite party no.2 was or is living in adultery; that the allegations over character of opposite party no.2 are false and incorrect, the correctness of which, is to be decided upon evidence before the Court in the pending proceedings under section 125 Cr.P.C.; that the revisionist was earning a sum of Rs.55,000/- to 60,000/- per month at the time of filing of maintenance on 7.1.2011 and by concealing his income, he has falsely stated to be earning Rs.3000/- per month; that it is wrong to say that opposite party no.2 was or is earning Rs.10,000/- per month from the alleged work of tuition and stitching; that after alleged exparte decree of divorce, the opposite party no.2 has not made remarriage and so she is fully entitled for getting maintenance from the revisionist.

Upon hearing parties counsel and perusal of record, I find that the revisionist claims to have obtained divorce decree against the opposite party no.2 on 18.2.2011 since before filing of maintenance petition by opposite party no.2, but the copy of maintenance petition filed with the revision at Annexure No.5 shows that Maintenance Petition No.1 of 2011 was instituted on 7.1.2011 and the alleged divorce decree has been passed during pendency of maintenance petition. The revisionist does not claim that after passing of the divorce decree, the opposite party no.2 has made marriage with someone else. Chapter IX of Cr.P.C. consists of provisions for maintenance to wives, children and parents and section 125 Cr.P.C. provides that if a person having sufficient means neglects or refuses to maintain his wife, legitimate or illegitimate children or parents, may be directed to make payment of maintenance allowance to such person.

The relevant provisions of section 125(1) Cr.P.C. and explanation are being reproduced as under :-

"125. Order for maintenance of wives, children and parents.- (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, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

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."

The above explanation shows that a woman, who has been divorced will be treated as wife for the purpose of grant of maintenance under sub-section 1 of section 125 Cr.P.C., till she re-marries.

In case of Rohtash Singh Vs. Ramendri (Smt.) and others 2000 (3) SCC 180, the Apex Court has held that

"Though the marital relations between the petitioner and the respondent came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be a "wife" within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to sub-section (1).

On account of Explanation (b) a woman who has been divorced by the husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband."

In the case of Mahesh Chandra Dwivedi Vs. State of U.P. and another 2009 Crl. L.J. 139, relying on the law laid down by the Apex Court in the case of Vanamala (Smt.) Vs. H.M. Ranganatha Bhatta 1995 (5) SCC 299, this Court has held that

"even if the divorce obtained by mutation consent, it would not preclude the wife from claiming maintenance till she re-marries and is unable to maintain herself and the fact that in compromise she agreed not to claim any maintenance would be immaterial since any such agreement, which is opposed to public policy would not be enforceable."

In view of the discussions made above, I am of the considered view that the learned Magistrate has not committed any illegality or irregularity in allowing the application for interim maintenance. As far as quantum is concerned, the opposite party no.2 has stated in the complaint that revisionist owns 28 bighas of agricultural land, doing business of contractorship in B.H.E.L as well as carrying on the business of dairy and earning Rs.55,000/- to Rs.60,000/- per month, while the revisionist claims to be serving in B.H.E.L., Haridwar at a salary of Rs.3000/- per month. As per salary slip at page 49, the revisionist was getting Rs.3000/- salary in March, 2011 in which only basic salary has been mentioned and D.A. and allowances have not been mentioned. The above salary inclusive of D.A. and allowances would have certainly enhanced manifold during last six years particularly after VIIth Pay Commission. An amount of Rs.1500/- per month, may not be considered to be sufficient for the livelihood and maintenance of opposite party no.2 and may also not be considered to be disproportionate to the earnings of revisionist.

By the interim order dated 1.8.2011 of this Court, only the operation of impugned order of interim maintenance dated 1.7.2011 was stayed but to my surprise, the certified copy of order sheets filed by revisionist through supplementary affidavit shows, that the learned trial court has not proceeded for disposal of maintenance petition during last six years on the pretext of stay of proceedings by the High Court, despite no such order of staying the proceedings of maintenance petition was issued by this Court at any point of time.

In view of the discussions made above, I have come to the conclusion that learned counsel for the revisionist has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned orders and there is no sufficient ground for interfering with or for setting it aside the impugned orders. The revision has got no force and is liable to be dismissed.

The revision is dismissed, accordingly.

Interim order, if any, stands vacated.

Let a copy of this order be sent to court below for expeditious disposal of old maintenance petition in accordance with law as well as for ascertaining recovery of arrears of interim maintenance, if any.

Order Date :- 7.9.2017

Tamang