Jitendra @ Jitendra Kumar Gupta vs State Of U.P. And 2 Others
2021 Latest Caselaw 6736 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- CRIMINAL REVISION No. - 1167 of 2021
 
Revisionist :- Jitendra @ Jitendra Kumar Gupta
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Vikas Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Vikas Mishra, learned counsel for the revisionist and learned A.G.A. through video conferencing.

This revision under Section 397 read with Section 401 of Criminal Procedure Code, 1973 has been filed against the judgment and order dated 22.2.2021 passed by learned Principal Judge, Family Court, Amroha in Case No.213 of 2015 (CNR No.UPJB020006472015) (Smt. Mridul Gupta and another vs. Jitendra) under Section 125 of Criminal Procedure Code, 1973, Police Station Didauli, District Amroha, by which he has partly allowed the maintenance petition no.213 of 2015 (Smt. Mridul Gupta and ors vs. Jitendra Gupta) and awarded the interim maintenance of Rs.4000/- to applicant no.1 (respondent no.2) Smt. Mridul Gupta and Rs.2000/- to applicant no.2 (respondent no.3) Shivansh (Minor) till he attains majority, from the date of filing of the claim petition i.e. 13.7.2015.

Learned counsel for the revisionist has submitted that the marriage of the revisionist with the respondent no.2 was solemnized on 01.6.2003. She is living at her parental home with son Shivansh with her own will. Whenever he tried to bring her to his home, she always refused to come to his home. He is always ready to keep his wife and son with him. The learned Court below has not appreciated the entire facts and evidence available on record and decided the case on the basis of surmises and conjectures. The learned Court below has arbitrarily awarded Rs.6000/- as maintenance in her favour and against the revisionist. The learned Court below did not appreciate the facts that the applicant has no source of income, whereas the respondent no.2 is fully competent to meet out her needs by earning herself. It has also been submitted that the respondent no.2 did not perform her matrimonial obligations since last 18 years, therefore, she is not entitled for any maintenance and thus, the impugned order is liable to be set aside.

On the other hand, learned AGA has opposed the revision and submitted that there is no illegality in the impugned order passed by the court below.

I have heard learned counsel for the parties and perused the record.

Before adverting to the claim of the parties, it would be relevant to quote section 125 Cr.P.C.:

Order for maintenance of wives, children and parents

"125. (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 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."

From perusal of the aforesaid provisions, it is clear that an order under section 125 Cr.P.C. can be passed, if a person despite having sufficient means neglects or refuses to maintain his wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife.

Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The Court held as under:

"Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636."

A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section 125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.

In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under:

"A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."

After going through the record, it is clear that revisionist has been ousted from the house of her husband. Even a single penny has not been given by the revisionist in lieu of maintenance and she was ousted without any sufficient ground. Almost no wife is supposed to leave the house of the husband without any rhyme or reason. Wife's right to claim maintenance can be denied in the circumstances only provided under section 125(4) Cr.P.C. which runs as follows:

Section 125(4)- No wife shall be entitled to receive an allowance [for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

The Hon'ble Supreme Court in Laxmi Bai Patel vs. Shyam Kumar Patel 2002 (44) ACC 1102 SC has held as under:

"To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Cr.P.C. can be denied only in the circumstances provided under sub-section (4) of the said section."

Principle is that when prima facie marriage is established, maintenance should be awarded because Section 125 Cr.P.C. is intended to curtail destitution and also to ameliorate orphancy. The object is to achieve social purpose and to prevent vagrancy and destitute.

The opposite party no. 2 Smt. Mridul Gupta is trying to get maintenance but not even a single penny in lieu of maintenance has been received from her husband. The proceeding under section 125 Cr.P.C. provides a speedy remedy for supply of food, clothing and shelter to the deserted wife whereas the revisionist has failed to establish that opposite party no. 2 without any sufficient reason refused to live with him.

The impugned order is based upon relevant consideration and supported by cogent reasons. Considering the high cost of living in these days, the sum of Rs.6,000/- per month awarded as maintenance, cannot be termed as being on the higher side in view of the admitted fact that the appellant is earning Rs.50,000/- per month.

In view of what has been indicated above, the impugned judgement and order passed by the Principal Judge, Family Court, Amroha is justified and is hereby upheld.

The revision is accordingly dismissed.

Order Date :- 29.6.2021

RKP