Smt. Roli Kulshreshtha vs State Of U.P. And Anr.
2022 Latest Caselaw 2710 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on : 06.05.2022
 
Delivered on : 13.05.2022
 

 
Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 1222 of 2017
 

 
Revisionist :- Smt. Roli Kulshreshtha
 
Opposite Party :- State of U.P. and Anr.
 
Counsel for Revisionist :- Krishana Kumar Singh, Harendra Pratap Singh
 
Counsel for Opposite Party :- Govt. Advocate, Pramod Kumar
 

 
Hon'ble Brij Raj Singh,J.

Heard Sri Krishana Kumar Singh, learned counsel for the revisionist and Sri Rishikesh Sharma, learned A.G.A. for the State. Despite service of notice upon opposite party no.2, no one appeared on his behalf

2. The present revision has been preferred with a prayer to set aside the impugned judgment and order dated 18.10.2017 passed by Principal Judge, Family Court, District Lucknow in Criminal Case No.1039 of 2005 (Smt. Roli Kulshreshtha and others Vs. Sudeep Kulshreshtha) under Section 125 Cr.P.C.

3. The revisionist filed an application under Section 125 Cr.P.C. on 25.10.2005 with averment that the revisionist and opposite party no.2 were married on 22.11.1990 and after marriage, she had gone to the house of opposite party no.2 after Vidai. She carried the marital obligation without any hindrance. Out of the wedlock a son, namely, Sarthak was born on 28.11.1992 and a daughter Riya was born on 26.07.1997. She further stated in the application that she was a proprietor of "K.C.W. Computers" before marriage since 1987 and was managing the business from 10B, Tilak Marg, Moti Mahal Crossing, Lucknow. The opposite party no.2 who was a Chartered Accountant, shifted his office in the said office of the revisionist. The opposite party no.2 sold the instrument of revisionist's business and misappropriated the amount due to which her income was decreased. The opposite party no.2 changed the name of the Firm "Times Telecom Firm" which was of the revisionist, without her consent and knowledge. The forged signature of the revisionist was also used and the income of Firm was received by opposite party no.2.

4. The application further indicates that the opposite party no.2 shifted in the house of mother of the revisionist House No.18/111, Indira Nagar, Lucknow on 26.07.1998 and remained there. He had quarreled with the mother of revisionist and left the house on 28.02.2005. The revisionist filed an application under Section 5 of Hindu Marriage Act and opposite party no.2 filed a case under Section 13 of Hindu Marriage Act for divorce. Both cases were heard and decided together vide order dated 01.10.2014 and the case under Section 13 of Hindu Marriage Act was dismissed and case under Section 9 of Hindu Marriage Act was allowed.

5. On the application under Section 125 Cr.P.C. the notice was issued by the court below and opposite party no.2 appeared and filed objection and denied most of the averments made by the revisionist. He admitted that after marriage he opened his office in the basement of office of revisionist. He has also submitted that the revisionist got transferred her office in his house. He submitted that after some time of marriage the revisionist wanted to live in separate house and forced the opposite party no.2 to reside in other house. She further put pressure upon him that the house in the name of mother of revisionist may be renovated so that wife and husband may live in the said house. The opposite party no.2 spent lot of money and the house was renovated and two story building was constructed in 1995 and opposite party no.2 used to live with revisionist in the said house. He further stated in the objection that the revisionist has no cordial relation with her and he was mentally harassed by her. He stated in the application that revisionist has got sufficient means and there is no need for maintenance and he has further submitted that the application may be dismissed for maintenance.

6. The revisionist was examined as P.W.-1 and Sarthak was examined as P.W.-2. The opposite party no.2 was examined as D.W.-1. After recording the statement of the witnesses and considering various documents the point of determination was framed by the court below. The first determination was, as to who abandoned the Company and the second question was framed, whether opposite party no.2 abandoned the Company of revisionist and if she is unable to maintain herself whether maintenance should be given to her. The court below passed impugned judgment on 18.10.2017 and has observed that there is no attempt made by revisionist to reconcile the relationship with opposite party no.2 after the decree under Section 9 of Hindu Marriage Act. In the statement recorded before the court below, the revisionist has submitted that she had tried to reconcile the relationship through her son and her statement has been recorded before the court below but the court below has taken contrary view that the revisionist had not made any attempt to reconcile after the decree of the Conjugal Right under Section 9 of the Hindu Marriage Act passed in favour of the husband.

7. The counsel for the revisionist has cited Principle of Hindu Law written by Mulla at page 751. The counsel for the revisionist has submitted that the revisionist cannot be put at disadvantageous position for a decree passed in her favour under Section 9 of the Hindu Marriage Act on the ground that she had not made any effort to reconcile the issue. It has been argued that the court below took a contrary view while deciding the application under Section 125 Cr.P.C. which is beneficial legislation and it is always open to the court to weigh the evidences under Section 125 Cr.P.C. independently while deciding the issue of maintenance.

8. Section 9 of the Hindu Marriage Act provides that when either of the parties withdrew from the society of others, the aggrieved party may file case under Section 9 for restitution of conjugal rights and court may after being satisfied and finding no legal ground why application should not be allowed, may pass the decree. Explanation to Section 9 casts a burden upon the person who withdrew the society to prove reasonable excuse.

9. The counsel for the revisionist has submitted that the Family Court did not conclusively decide the point no.1 and placed the revisionist at disadvantageous position for a decree passed in her favour under Section 9 of Hindu Marriage Act on the ground that she did not make any effort after decree for reconciliation with opposite party no.2. He has further submitted that such finding is contrary to evidence on record.

10. The court below has recorded the finding in her application Kha-3 and in her statement the revisionist has stated that she has no independent source of income but in her cross-examination she has admitted that at present she has some income but the same is temporary and she further stated that due to personal reason she left her Government Job. The court below has observed that the revisionist has not stated that she was not capable of earning.

11. The revisionist has stated before the court that she was living with her mother who is dependent upon her and she has no independent source of income, whereas her husband was a Chartered Accountant, Proprietor of Vodafone Franchise, Times Telecom Mini Store and had two vehicles. She further stated that he was Member of Lino's Club and has gone abroad in Dubai and Malaysia and stated before the court that she had no regular income of her livelihood. She further stated that she only did work before marriage in the Computer Section of the Department of Irrigation w.e.f. Decermber 1987 before her marriage.

12. P.W.-2, Sarthak Kulshreshtha has also deposed before the court below that her mother had no income and he made effort to reconcile the issue.

13. The court below ignored the evidence on record and finding has been recorded against the revisionist that she is able to maintain herself, therefore, she is not entitled for maintenance.

14. Learned Counsel for the revisionist has invited attention of this Court on the judgment passed by Hon'ble the Supreme Court in the case of Sunita Kachwaha and others Vs. Anil Kachwaha, (2014) 16 SCC 715. Paragraph nos. 8, 9 and 10 of the said judgment are quoted below:-

8. 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 the 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.

9. 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, the 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.

10. The impugned order of the High Court dated 26-6-2008 passed in Anil Kachwaha Vs. Sunita Kachwaha is set aside and this appeal is allowed. The respondent is directed to pay the maintenance of Rs.3000 per month to the appellant wife as ordered by the Family Court and also pay the arrears of maintenance payable to the appellant wife within the period of eight weeks."

15. The Hon'ble Supreme Court has observed that under Section 125 Cr.P.C., it is not necessary for 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. The Supreme Court has further observed that merely because the wife was earning something it would not be ground to reject her claim for maintenance.

16. The court below has taken view that the wife had admitted that she has some temporary income, therefore, she is not entitled for maintenance. This observation runs contrary to the judgment of Hon'ble Supreme Court in the Case of Sunita Kachwaha (supra).

17. Learned counsel for the revisionist has further relied upon the judgment passed by Hon'ble the Supreme Court in the case of Rajnesh Vs. Neha and another, (2021) 2 SCC 324. Relevant paragraph nos. 13, 78 and 79 are quoted below:-

"13. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Article 15(3) of the Constitution of India provides that :

"15. (3) Nothing in this article shall prevent the State from making any special provision for women and children."

Article 15 (3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the empowerment of women, led to the enactment of various legislations from time to time.

78. The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.

79. In Manish Jain v Akanksha Jain this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it."

18. In view of the aforesaid factual and legal aspect, I am of the view that the order passed by the court below is not sustainable. The revision is allowed. The order dated 18.10.2017, passed by Principal Judge, Family Court, District Lucknow in Criminal Case No.1039 of 2005 (Smt. Roli Kulshreshtha and others Vs. Sudeep Kulshreshtha) under Section 125 Cr.P.C., is set aside and the matter is remanded back to the court below to take a fresh decision keeping in view the observation made here-in-above within a period of four months from today.

19. No order as to costs.

Order Date :- 13.05.2022

Atul

(Brij Raj Singh, J.)