Allahabad High Court
Smt. Kalawati vs State Of U.P. And Anr. on 4 May, 2022
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 16
Case :- CRIMINAL REVISION No. - 202 of 2018
Revisionist :- Smt. Kalawati
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Shafat Ullah Khan
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Brij Raj Singh,J.
Notice was issued by this Court on 19.03.2018 and the same has been served on opposite party no.2 but none has appeared on his behalf.
The present revision has been preferred with a prayer to allow the revision and enhance the maintenance awarded to the revisionist from Rs.1,100/- to Rs. 10,000/- and the maintenance may be ordered to be paid from the date of presentation of application under Section 125 Cr.P.C.
The revisionist - wife has filed this revision against the order dated 02.02.2018 passed by Principal Judge, Family Court, Unnao. The revisionist has submitted before the court below that she was married to opposite party no.2 and when she was harassed by opposite party no.2 and his family, she filed an application under Section 125 Cr.P.C. She has further submitted that she was deserted by opposite party no.2. The application was allowed and Rs.800/- was directed to be paid as maintenance on 09.05.2014, which is meager one. Looking into the day to day expenditure and inflation the revisionist filed an application under Section 127 Cr.P.C. for enhancement of the award. It is stated that opposite party no.2 is getting pension Rs.20,000/- per month, further Rs.10,000/- is income from the agriculture and he is also earning Rs.10,000/- monthly out of private job. The opposite party no.2 appeared before the court below and he submitted that he is getting Rs.8,000/- as pension and enhancement application was liable to be dismissed.
After hearing both the parties, the order has been passed by the court below and it has recorded finding that the revisionist was not able to show any document indicating that the opposite party no.2 is getting pension as per her averment and the court below enhanced only Rs.300/- in total Rs.1,100/- per month.
Learned counsel for the revisionist has submitted that the court below had option to summon the pension papers either from the department or the court below could have asked the opposite party no.2 to produce the pension papers but without doing such on wrong presumption only Rs.300/- has been enhanced.
In my opinion, the court below could have directed the opposite party no.2 to produce the pension papers and thereafter could have ascertained the amount of the pension but no such exercise was done. The finding recorded by the court below that the revisionist was unable to produce any document regarding pension, is not justifiable. Once, it is established that the opposite party no.2 is a pensioner he could have been directed by the court below to produce pension paper so that the real figure could have been ascertained but it was not done in the present case. Opposite party no.2 is an ex-serviceman from the military and his pension paper was required to ascertain by the court below. The court below could have also taken into consideration the agricultural income and other source of income which was mentioned by the revisionist. The court below also committed error by not enhancing the award w.e.f. 06.07.2016 i.e. the date of application. It is settled law that application for maintenance should be awarded from the date of application. The Supreme Court has observed in the case of Rajnesh Vs. Neha and another, (2021) 2 Supreme Court Cases 324 that from the date of application the maintenance should be awarded. Relevant paragraph no.96 of aforesaid judgment is quoted below:-
"From the date of application
96. The view that maintenance ought to be granted from the date when the application was made, is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependent children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application, which often runs into several years."
In view of the aforesaid factual aspect, I remand the matter to the court below to take fresh decision within four months from today keeping in view the observations made above.
The order dated 02.02.2018 passed by Principal Judge, Family Court, Unnao, is set aside. Revision is allowed in part.
Order Date :- 4.5.2022
Atul
