Sushil Kumar vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 2158 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 
Case :- CRIMINAL REVISION No. - 68 of 2017
 
Revisionist :- Sushil Kumar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And Ors
 
Counsel for Revisionist :- Adnan Ahmad
 
Counsel for Opposite Party :- Govt. Advocate,Sanjeev Shukla
 

 
Hon'ble Brij Raj Singh,J.

Heard Sri Adnan Ahmad, learned counsel for the revisionist, Sri Sanjeev Shukla, learned counsel for opposite party nos. 2 and 3 and learned A.G.A. for the State.

This criminal revision has been preferred with a prayer to allow the revision and set aside the judgment and order dated 30.11.2016 passed by learned Additional Judge, Family Court/ FAST TRACK COURT NO.-1, Unnao in Case No. 20 of 2014 (Anita and another Vs. Shushil Kumar) by which the application under Section 125 Cr.P.C. was partly allowed.

Brief facts of the case as that opposite party no.2 filed an application under Section 125 Cr.P.C. with the averments that she was married with the revisionist on 11.05.2011 in accordance with Hindu rights and rituals. She came to the house of the revisionist after vidai and performed her matrimonial obligations. It is further stated in the application that in the marriage, dowry was given as per the capacity of the family of the opposite party no.2, however, after some time harassment for dowry was done by the revisionist and his family members. In the meantime, she also had given birth to a child namely Km. Jyoti, opposite party no.3. It is further stated in the application that when the extra demand of dowry could not be fulfilled by her family members, she was deserted by her husband and in-laws and she went to her parents house on 05.02.2012. Opposite party no.3 was born in Amba Hospital, Civil Lines, Kanpur. Since opposite party nos. 2 and 3 have no source of income, therefore, she filed application under Section 125 Cr.P.C. for maintenance.

The notice was issued by the court below to the revisionist, who appeared before the court below and filed objection, in which it is admitted that the marriage took place on 11.05.2011. It has been further stated in the objection that his wife had gone to Behrine and she came back and on the basis of false statement she filed application under Section 125 Cr.P.C. It is further stated that she was never harassed either by him or by his family members and he never demanded additional dowry. It is further stated in the objection that he is only getting Rs.10,000/- out of the job done by him in Kuvait and opposite party no.2 is healthy lady and she can earn to sustain her life.

The court below examined P.W.-1 Smt. Anita, P.W.-2 Rajeev Chaurasia and also examined the revisionist as D.W.-1. The court below passed the judgment and order dated 30.11.2016, by which Rs. 5000/- has been awarded to opposite party no.2 and Rs.2000/- has been awarded to opposite party no.3. Revisionist being aggrieved against the said order has filed the present revision.

Sri Adnan Ahmad, learned counsel for the revisionist has submitted that the court below has not considered the income of the revisionist and passed the order on the basis of surmises and conjectures. He has further submitted that opposite party no. 2 herself deserted her husband and no dowry was demanded either by the revisionist or his family members.

It is admitted fact that the marriage between the revisionist and opposite party took place on 11.05.2011 as per Hindu rites and rituals and after the marriage the revisionist had gone to Kuvait where he was employed. It is also on record that since there was strange relation between revisionist and opposite party no.2, therefore, opposite party no.2 was deserted by her husband. The fact is still not proved as to who deserted but fact remains that revisionist and opposite party no.2 were married and by any reason if wife if living separately, she is entitle for maintenance which is settled view in the case of Rajnesh versus Neha and another; (2021) 2 SCC 324 and Sunita Kachwaha & Ors. Vs. Anil Kachwaha reported in 2014 (16) SCC 715. Relevant paragraphs in the case of Sunita Kachwaha (Supra) are extracted hereinbelow:-

"8. The proceeding under Section 125 Cr.P.C. is summary in nature. In a proceeding under 125 Cr.P.C., it is not necessary for the court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant-wife and the respondent and observing that the appellant-wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of appellant-wife and the factual findings, as recorded by the Family Court.

9. Inability to maintain herself is the pre-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant-wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband's economic condition is quite good, the wife would be entitled to maintenance.

10. The learned counsel for the respondent submitted that the appellant-wife is well qualified, having post graduate degree in Geography and working as a teacher in Jabalpur and also working in Health Department. Therefore, she has income of her own and needs no financial support from respondent. In our considered view, merely because the appellant-wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself. Insofar as her employment as a teacher in Jabalpur, nothing was placed on record before the Family Court or in the High Court to prove her employment and her earnings. In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. The Family Court had in extenso referred to the respondent's salary and his economic condition. The respondent is stated to be an Engineer in PHE, Kota. He is in Government service and according to the pay certificate then produced before the Family Court, he was getting salary of Rs.20,268/- per month. In her evidence, appellant-wife has also stated that the respondent owns a very big house of his own in which he is said to have opened a hostel for boys and girls and is earning a substantial income. She has also stated that the respondent owns another house at Talmandi Sabji Kota, Rajasthan and is receiving rental income of Rs.4,500/- per month. Having regard to the salary and economic condition of the respondent, the Family Court has awarded maintenance of Rs.3,000/- to the wife and Rs.2,500/- to each of the daughters, in total Rs.8,000/- per month. It is stated that the maintenance amount awarded to the daughters has been subsequently enhanced to Rs.10,000/- per month. The maintenance amount of Rs.3,000/- per month awarded to the wife appears to be minimal and in our view, the High Court ought not to have set aside the award of maintenance. The learned counsel for the appellants prayed for enhancement of the quantum of maintenance to the appellant-wife. We are not inclined to go into the said submission, but liberty is reserved to the appellant- wife to seek remedy before the appropriate court."

The fact remains that the revisionist is working in Kuvait and he has got Indian Passport thus by all means it can be inferred that he is earning handsomely Rs. 7000/- is not excessive in any manner. The husband is liable to maintain his wife and children. The arguments advanced by learned counsel for the revisionist lacks merits on this score that income has not been determined. Once it is admitted that revisionist is doing job in Kuvait, meaning thereby that he is earning out of job which is certainly sufficient and Rs.7000/- awarded by the court below is not excessive. The finding recorded by the court below needs no interference by this Court.

The present revision is dismissed.

There is no order as to costs.

Order Date :- 6.5.2022

Abhishek Singh