Naveen Kumar Sharma vs State Of U.P. & Others
2021 Latest Caselaw 9213 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 22.07.2021
 
Delivered on 02.08.2021
 
	
 
Court No. - 28
 
Case :- CRIMINAL REVISION No. - 413 of 2020
 

 
Revisionist :- Naveen Kumar Sharma
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Revisionist :- Tung Nath Tiwari,Ramesh Kumar Dwivedi
 
Counsel for Opposite Party :- G.A,Gyanendra Pathak
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

1. The instant criminal revision has been preferred by the revisionist against the impugned judgment and order dated 28.02.2020 passed by the Additional Principal Judge-II, Family Court, Bahraich in Maintenance Case No.1091/11/13, under Section 125 Cr.P.C. (Smt. Sita Sharma and another v. Naveen Kumar Shamra), whereby the application of the opposite party nos.2 and 3 has been allowed and the revisionist has been directed to pay Rs.10,000/- and 5,000/-, respectively to opposite party no.2 and 3 monthly.

2. The brief facts necessary for disposal of this revision petition are to the tune that an application under Section 125 Cr.P.C. was moved by opposite party no.2 and 3 against the revisionist stating therein that opposite party no.2 was married to the revisionist and the expenses of the marriage were borne by the mother and brothers of the opposite party no.2 and Rs.7 lakh were paid to the revisionist. However, revisionist and his family members were not satisfied with the dowry and other presents and they started committing cruelty with the opposite party no.2 in lieu of demand of Omni Maruti Van and Rs.1 lakh. It is also contended that Rs.2,50,000/- were paid by the mother and brothers of the opposite party no.2 to the revisionist for the purpose of purchasing Omni Maruti van car, however, the revisionist continued to demand Rs.1 lakh for the purpose of purchasing ''Papad Machine' and when his demand was not met the opposite party no.2 was ousted by the revisionist from his house in advance stage of pregnancy. It is also stated that the revisionist has also instituted a suit for divorce and on 23.10.2012, the revisionist assaulted the opposite party no.2 and left her alone at Fhakharpur station and further threatened her that if she will return without Rs.1 lakh, she will be done to death. It is also stated that on 10.03.2013 a daughter was born to her but the revisionist did not come to see her and he has completely deserted the opposite party no.2 and her daughter and despite being able to maintain he is not paying any maintenance amount to them while opposite party no.2 is not able to maintain herself. Her father had also died and brothers are maintaining their families and she is unable to maintain herself and her daughter, therefore, Rs.20,000/- for herself and Rs.10,000/- to her daughter were demanded by opposite party no.2 as monthly maintenance.

3. The revisionist in his objection has denied all the allegations of the opposite party no.2, however, admitted that he is the husband and father of the opposite party no.2 and 3, respectively and also that on 25.07.2012 opposite party no.2 had left the house of the revisionist in his absence. It is also stated by the revisionist that the opposite party no.2 is living separately with her free wish and will and the opposite party no.2 is an educated lady and she has started a coaching and is earning about Rs.10,000/- monthly and apart from this she is also owing agricultural and residential properties while the revisionist is not having any income as he is doing petty work of selling spices. He is not an income tax payee nor he is possessing any vehicle and he is not in a position to pay any maintenance to the opposite party no.2 and 3.

4. The parties have also filed documentary evidence and opposite party no.2 has testified herself as P.W.-1 while the revisionist has testified himself as O.P.W.-1 along with one Deepak Singh as O.P.W.-2.

5. The court below has formulated four points for determination, which are as under:

(i) Whether the opposite party no.2 is wife of the revisionist?

(ii) Whether the opposite party no.2 is living separately from the revisionist on genuine reasons?

(iii) Whether the revisionist is capable of maintaining the opposite party no.2 and 3? and

(iv) Whether he is possessing sufficient means for the same?

6. Having regard to the evidence led by the parties, the court below has decided point nos.1, 2 and 3 in favour of the opposite party no.2 and concluded that the opposite party no.2 is the wife of the revisionist and she is living separately on the basis of genuine reasons and that she is also not capable of maintaining herself and her daughter, however, with regard to the point no.4, the court below concluded that the revisionist is having sufficient means and according to the admission of the revisionist he is earning about Rs.50,000/- per month and thereby directed him to pay Rs.10,000/- to opposite party no.2 and Rs.5,000/- to opposite party no.3 as monthly allowance.

7. Aggrieved by the order of the Additional Principal Judge-II, Family Court, Bahraich dated 28.02.2020, this revision petition has been preferred by the revisionist.

8. Learned counsel for the revisionist while referring to the judgment passed by Additional Principal Judge II, Family Court, Bahraich submits that the court below has ignored the basic principles of appreciation of evidence and has admitted the inadmissible evidence produced by the opposite party no.2 and has come to a conclusion that the revisionist is earning Rs.50,000/- per month while there was neither any material nor any evidence in support of the income of the revisionist. It is further submitted that court below has also erred in holding that the opposite party no.2 is living separately on genuine reasons while it was apparent on record that the opposite party no.2 has deserted the revisionist and therefore, she could not claim maintenance. It is also submitted that the maintenance amount of Rs.10,000/- per month for opposite party no.2 and Rs.5,000/- per month for her daughter is exorbitant and having regard to the financial condition of the revisionist it is not possible to him to pay such a huge amount.

9. Learned counsel representing opposite party nos.2 and 3 controverts the submissions of learned counsel for revisionist on the ground that no illegality has been committed by the Court below while appreciating the evidence available on record as it was an admitted fact that revisionist is earning Rs.40,000/- per month and, therefore, by the passage of time his income would have certainly increased so there is no illegality in the order of the Sub-ordinate Court whereby the income of the revisionist has been assessed as Rs.50,000/- per month. It is also submitted by learned counsel that there are ample reasons available on record which justifies the separate living of the opposite party no.2. and this fact should also be taken into consideration that revisionist has not paid any amount to the opposite party no.2 till now, therefore, the Revision preferred by the revisionist be dismissed.

10. Learned AGA also supported the submissions of learned counsel for opposite party nos. 2 and 3. So far as the sufficiency of means is concerned relationship of husband-wife and father-daughter is admitted to the revisionist with opposite party nos.2 and 3. There is ample evidence which justifies separate living of the opposite party no.2. No evidence has been brought on record to show that revisionist has paid any maintenance amount to opposite party nos. 2 and 3.

11. Having heard learned counsel for the parties perusal of record would reveal that applicant/opposite party no.2 in her application moved before the Court below has stated that the revisionist is running a small scale industry in the name of Kaushik Food Products wherefrom he earns Rs.1,00,000/- per month while the revisionist has denied it and according to him he is only supplying some house hold spices and also that he is doing labour work. It is also stated by him that neither he is an income tax nor sale tax assessee and he hardly earns Rs.6,000/- per month. His mother is a patient of Cancer and he also has to bear her medical expenses. The opposite party no2 in her evidence has filed the marriage advertisement published by the revisionist wherein he has shown his income as Rs. 40,000/- per month. Trial Court in his judgment has stated that some advertisement pamphlets have also been filed by opposite party no.2 in order to show that the revisionist is running a small scale Kuteer Udhyog.

12. Perusal of record would also reveal that revisionist in his cross examination has admitted that his income shown in the marriage advertisement i.e. Rs.40,000/- per month was written by his father and the same was less than his actual income which he was earning at that point of time. The trial Court in his judgment has noted that in para 8 of the affidavit filed by the revisionist he has admitted his income as Rs.15,000/- per month however, by filing another affidavit the revisionist has retracted the averment by saying that Rs.15,000/- were wrongly typed and his real income is Rs.7500/- per month. Having appreciated the evidence produced by the parties the trial Court has come to a conclusion that the revisionist is deliberately giving contrary statements pertaining to his income and it is evident that he has having business at Kanpur and in his marriage advertisement, he has shown his income as Rs.40,000/- per month and since his marriage was solemnized in the year 2020 increased in the income is imperative. The trial Court has also assessed the need of opposite party nos.2 and 3 and keeping in view the same and also the socio economic condition of the parties the maintenance amount has been fixed.

13. Even if the averments of the revisionist made in his objections are taken on its face, it is apparent that revisionist has admitted that he along with his brother is providing and supplying house hold spices to different shops, therefore, it is not a case where the revisionist is not earning anything or not having any income. This Court cannot ignore this fact that when a party to the dispute is concealing his income, specially in the cases of matrimonial disputes, some hypothetical exercise is done by the Courts keeping in its mind the status of the parties in order to do substantial justice between parties. It is admitted to the parties that at the time of marriage an advertisement was got published by the revisionist wherein he has shown his income as Rs.40,000/- per month. Having regard to the admission made by revisionist, I do not find any illegality in the finding of the Sub-ordinate Court that the same after the passage of ten years would have been about Rs.50,000/- per month, in absence of any pleading to the tune that the revisionist had incurred losses in the last preceding years. In para no. 20 of the Revision petition the revisionist has asserted that the marriage advertisement was published by his father therefore, this fact of publishing of the advertisement wherein his income has been shown as Rs.40,000/- per month is admitted to the revisionist. So far as contention of the revisionist that opposite party no.2 is an educated lady and may get private employment and may earn her livelihood, is concerned, the same is not to be given much weightage, specially in the background of the fact that the opposite party no.2 is also taking care of her minor daughter.

14. Perusal of the record in the background of the submissions made by learned counsel for the parties would reveal that opposite party no.2 in his cross examination before the Court below has admitted that she has passed M.A., B.Ed but during her cross examination no question was asked as to why she is not working any where. This Court is conscious of the fact that at present time it is very difficult to get a job. The revisionist in his cross examination has also admitted that in the ground floor of his house the business is established in the name of Kaushik Foods and he was also running a coaching institute in the past, however, the same has been shut down. It is also admitted to him that his father was a Central Government Employee and after his death Rs.10,000/- monthly pension is received by his mother and the expenses of her medical treatment are also borne by the Central Government. He has also admitted that his brother is doing business of ''Dhoop, Agarbatti' and he is not married. It is also admitted to the revisionist in his cross examination that the father of the opposite party no.2 had died and her mother is very old and she is bearing the whole expenses of her family.

15. Having regard to the above evidence I am of the considered view that no illegality has been committed by the Court below in coming to the conclusion with regard to the point nos.1, 2, 3 and 4, however, while fixing the amount of maintenance it appears that the Court below has not taken into consideration that the admission of the revisionist was to the tune of earning Rs.40,000/- and therefore, awarding of Rs. 15,000/- per month to the opposite party nos. 2 and 3 is on the higher side.

16. Having regard to the oral facts and evidence available on record in the considered opinion of this Court Rs.9,000/- per month to the opposite party no.2, Rs.4,000/- per month to the opposite party no.3 from the date of order till the date of her marriage would be an appropriate and just.

17. In view of above, the instant Revision is partly allowed and it is directed that in terms of order of the Court below the revisionist shall now pay Rs.9,000/- per month to opposite party no.2 and Rs.4,000- per month to opposite party no.3 from the date of the order of the Sub-ordinate Court i.e. 28.02.2020. All other terms mentioned in the judgment of trial Court dated 28.02.2020 shall remain the same.

Dated: 02.08.2021

Mohit Kushwaha

(Mohd. Faiz Alam Khan, J.)