Harmod Tiwari @ Guddu vs State Of U.P. And Another
2021 Latest Caselaw 10812 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 83
 

 
Case :- CRIMINAL REVISION No. - 1614 of 2021
 

 
Revisionist :- Harmod Tiwari @ Guddu
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Rajesh Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Rajesh Dwivedi, learned counsel for revisionist and learned A.G.A. for State.

2. Perused the record.

3. This criminal revision under Section 397/401 Cr.P.C. has been filed challenging judgment and order dated 23.03.2021 passed by Principal Judge, Family Court, Kanpur Dehat in Case No.401 of 2015, (Smt. Maneeta Tiwari Vs. Harmod Tiwari), under Section- 125 Cr.P.C., Police Station- Akbarpur, District- Kanpur Dehat.

4. Record shows that opposite party-2, Smt. Maneeta Tiwari filed an application dated 28.09.2015 under Section 125 Cr.P.C. claiming maintenance from revisionist at the rate of Rs. 5,000/- per month.

5. According to allegations made in aforesaid application, it was alleged by opposite party-2 that marriage of opposite party-2 was solemnized with revisionist on 27.06.2008 in accordance with Hindu Rites and Custom. Parents of opposite party-2 had given around Rs.3,00,000/- in cash and domestic goods at the time of marriage. However, revisionist and other in-laws of opposite party-2 were dissatisfied with above. They demanded additional dowry to the tune of Rs.50,000/- and one motor-cycle. On account of non-fulfilment of additional demand of dowry, physical and mental cruelty was alleged to have been committed upon opposite party-2. From the wedlock of revisionist and opposite party-2, a son- Ansh Kumar was born. Ultimately, opposite party-2 is alleged to have been ousted from her marital home on 06.05.2010. Consequently, opposite party-2 was forced to reside with her parents. It was further alleged that revisionist is having eight bighas of land from which his annaul income is Rs.4,00,000/-. Furthermore, revisionist is also working in a private company, where he is getting Rs.8,000/- per month as salary. Since opposite party-2 is not having any source of income and therefore to eradicate despair and destitution faced by her, a sum of Rs.5,000/- per month be awarded towards maintenance.

6. Application under Section 125 Cr.P.C. filed by opposite party-2 was contested by revisionist. He accordingly, filed an objection/written statement dated 18.07.2018. All the allegations made in application under Section 125 Cr.P.C. were denied. It was however, pleaded by revisionist that father of revisionist is having only four bighas of land which is sufficient for sustenance of parents of revisionist. Opposite party-2 is residing separately from revisionist without any sufficient cause. Opposite party-2 is having income of Rs.5,000/- from tuition. On the aforesaid premise, it was urged that no case for grant of maintenance under Section 125 Cr.P.C. has been made out and consequently application under Section 125 Cr.P.C. filed by opposite party-2 is liable to be rejected.

7. Opposite party-2, in support of her claim, adduced herself as P.W.1 and also filed an affidavit (paper no. 11ka). She also filed affidavit of one Jagdish Naraya Shukla (paper no. 13kha). Revisionist, in support of his defence filed his affidavit (paper no.15kha). However, no documentary evidence was filed by either of the parties.

8. After exchanging of pleadings, parties went to trial. Court below upon evaluation of material on record came to conclusion that opposite party-2 is legally wedded wife of revisionist. Opposite party-2 is residing separately from revisionist on sufficient grounds. Court below further held that opposite party-2 is not having sufficient means of income and therefore, she is unable to maintain herself. However, court below noticed the admission made by opposite party-2 in her examination-in-chief, wherein opposite party-2 has admitted that she earns Rs.700/- per month from tuition. However, court below, considering the facts and circumstances of case as well as status of parties, came to the conclusion that since revisionist is liable to maintain opposite party-2, it directed that a sum of Rs.3,000/- per month towards monthly maintenance and further a sum of Rs.1,500/- towards cost of litigation be paid by revisionist.

9. Learned counsel for revisionist contends that order impugned in present criminal revision is patently illegal and without jurisdiction. According to learned counsel for revisionist, court below, has erred in law in awarding maintenance in favour of opposite party-2 from the date of application and not from the date of order. Aforesaid submission is founded on the ground that no reason has been assigned by court below for allowing the claim of opposite party-2 from the date of application. It is next contended that since opposite party-2 in her examination-in-chief has herself admitted that she is having income of Rs.700/- per month, therefore opposite party-2 is not entitled to claim maintenance from revisionist. It is also submitted that no definite finding has been recorded by court below with regard to income of revisionist and therefore the amount of maintenance awarded by court below in favour of opposite party-2 is not only irrational but also excessive. On the aforesaid premise, learned counsel for revisionist contends that impugned order passed by court below cannot be sustained and therefore, liable to be quashed by this Court.

10. Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that court below has rightly passed impugned order. It is an admitted position that opposite party-2 is legally wedded wife of revisionist. As such, revisionist is legally and morally bound to maintain opposite party-2. However, there is no material on record to show that revisionist has discharged aforesaid obligation since opposite party-2 was ousted from her marital home in the year 2010. No material has been filed by revisionist before court below to establish the above. It is next contended that though opposite party-2 in her examination-in-chief has admitted that she earns Rs.700/- per month from tuition but that by itself is not a ground sufficient enough to deny monthly maintenance to opposite party-2 as amount earned by opposite party-2 from tuition is not even sufficient enough for sustenance. It is well-settled principle of law that maintenance must commensurate with the status of parties. Same should be sufficient for maintaining oneself and not for existence. Consequently, amount of maintenance awarded by court below is perfectly, just and legal. It is lastly contended that since revisionist himself did not adduced any material with regard to his income, court below has not acted illegally or in excess of jurisdiction in drawing an adverse inference against revisionist that revisionist can pay Rs.3,000/- per month to opposite party-2 towards maintenance. On the cumulative strength of above, learned A.G.A. vehemently submits that no case for interference by this Court has been made out and therefore, present criminal revision is liable to be dismissed by this Court.

11. Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of record, this Court finds that it is an admitted position between parties that opposite party-2 is legally wedded wife of revisionist. As such, revisionist is legally and morally bound to maintain opposite party-2. It has further come on record that opposite party-2 was ousted from her marital home on 06.05.2010. However, nothing has been brought on record by revisionist to establish that he has been maintaining opposite party-2 since then. Findings recorded by court below and inference drawn against revisionist cannot be said to be illegal, perverse and erroneous. It is true that opposite party-2 in her examination-in-chief admitted that she earns around Rs.700/- per month from tuition but that by itself is not a ground sufficient enough to deny maintenance. Opposite party-2 has a right to live and not a right to exist. Consequently, maintenance awarded by court below cannot be faulted with. With regard to income of revisionist, the Court finds that no illegality or irregularity has been committed by court below in drawing an inference against revisionist that he can pay Rs.3,000/- to opposite party-2 towards monthly maintenance. Revisionist was in possession of best evidence but he himself did not adduce any direct or indirect evidence regarding his income. It is well-settled principle of law that where the findings cannot be dislodged, the conclusion cannot be changed. Upon perusal of impugned order, the Court finds that findings recorded by court below are perfectly, just and legal. Same cannot be said to be illegal, perverse or erroneous. Furthermore, amount awarded by court below is to be paid by revisionist to his own wife. As long as marital relationship exists between parties, burden shall be upon revisionist to maintain his wife.

12. For the facts and reasons noted-above, this Court does not find any illegality in the order impugned in present criminal revision. No good ground exists to entertain this revision. Revision lacks merit and is liable to be dismissed.

13. It is accordingly dismissed.

Order Date :- 25.8.2021

Saif