Allahabad High Court
Tabassum vs State Of U.P. Thru. Prin. Secy. ... on 26 September, 2022
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL REVISION No. - 174 of 2022
Revisionist :- Tabassum
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Revisionist :- Manoj Kumar Singh
Counsel for Opposite Party :- G.A.,Kuldeep Singh,Vikas Pandey
Hon'ble Ajai Kumar Srivastava-I,J.
Heard Rajanvya Shekhar, holding brief of Sri learned counsel for the revisionist and learned A.G.A. for the State.
This case is being taken up on a mention made by learned counsel for the revisionist after intimating the learned counsel for the opposite party no.2.
However, when the case was taken up for hearing, no one appeared for the opposite party no.2. Accordingly, this revision is proposed to be disposed of on its own merit on the basis of the material available on record.
The instant criminal revision came to be filed by the revisionist to assail the judgment and order dated 16.03.2021 passed by 3rd Additional Principal Judge, Family Court, Lakhimpur Kheri in Criminal Case No.752 of 2018, under Section 125 Cr.P.C., Police Station Kotwali Mohammadi, District Lakhimpur Kheri, whereby the application for maintenance filed by the revisionist has been rejected.
Brief facts of the present case are that the revisionist herein filed an application under Section 125 Cr.P.C. against the opposite party no.2 claiming maintenance and by stating therein that she was married to opposite party no.2 in the year 2017. After marriage, the opposite party no.2 and his family members used to demand of dowry from the revisionist which she was unable to fulfill. Due to non-fulfillment of alleged demand of dowry, the revisionist was compelled to leave her matrimonial home on 25.05.2018 at 10:00 A.M. and thereafter she is staying with her parents. The opposite party no.2 is engaged in sale and repair of bicycle and he earned about Rs.30,000/- per month from the aforesaid business. The revisionist herself is not able to earn her livelihood and she is not educated. Therefore, she filed the application claiming interim maintenance of Rs.5000/- per month.
During the pendency of aforesaid application moved under Section 125 Cr.P.C. by the revisionist, an application bearing No.7-A came to be filed by her, by means of which, she claimed Rs.10,000/- as a lump sum payment in order to prosecute the cases, Rs.500/- towards miscellaneous expenses borne by her for attending dates and Rs.5000/- per month as interim maintenance. The opposite party no.2 filed an objection bearing No.10A against the aforesaid application stating therein that the applicant/revisionist is his legally wedded wife, who has deserted him voluntarily. He never demanded dowry from her and never harassed her for alleged non-fulfillment of demand of dowry. The opposite party no.2 has also stated that he was operated on 25th of July, 2018 and since then, he is not a fit person to do any work to earn his livelihood. According to opposite party no.2, the family members of the revisionist want her to get the divorce so that she may be re-married somewhere else. He has stated that he is involved in repair of bicycle and earns a meager amount, which is hardly enough for his survival.
After hearing learned counsel for the parties, the application for interim maintenance bearing No.7-A came to be dismissed by means of the impugned order dated 16.03.2021.
It is submitted by learned counsel for the revisionist that the impugned order dated 16.03.2021 is patently illegal for the reason that the learned trial Court, while rejecting the application for interim maintenance, failed to appreciate the fact that admittedly, no amount for maintenance of revisionist was ever given by the opposite party no.2 since filing of the application under Section 125 Cr.P.C. in the year 2018. His further submission is that learned trial Court has not recorded any finding as to inability of opposite party no.2 to earn sufficient money so as to enable him to cater necessities of legally wedded wife i.e. revisionist. On the contrary, learned trial Court appears to have been swayed by the fact that opposite party no.2 herein had already filed a case for restitution of conjugal rights and he being ill for quite sometime is unable to earn his livelihood so as to enable him to maintain his legally wedded wife. He, thus, submits that the impugned order dated 16.03.2021 is patently illegal and against the legislative intent behind incorporation of chapter 9 in the Code of Criminal Procedure.
Having heard learned counsel for the revisionist, learned A.G.A. for the State and upon perusal of the record, it transpires that the fact of marriage of revisionist with opposite party no.2 is not denied. There is no finding recorded by learned trial Court to the effect that the revisionist is able to earn her own livelihood. In such a situation, keeping in view the object behind incorporation of Chapter 9 of Code of Criminal Procedure, the fact remains that it is statutory duty of husband to maintain his wife, of course, according to means of his own income. The fact that opposite party no.2 filed an application for restitution of conjugal rights, per se, cannot be a ground to deny the revisionist her right of maintenance because that proceeding for restitution of conjugal rights is yet to be finally disposed of. Even otherwise, any party to proceeding of restitution of conjugal rights has certain judicially recognized defence, out of which one of them is that if she has an apprehension of her life or if she is being harassed by the other parties, she has a legal right to approach the Court for the same. In fact, it has been a case of revisionist that the she used to be harassed by the opposite party no.2 due to non-fulfillment of demand of dowry.
In this view of the matter, this Court is of the considered view that learned trial Court materially erred in denying interim maintenance to the revisionist qua the opposite party no.2 on the ground that he is presently ailing and he has already filed a case for restitution of conjugal rights.
Thus, the object behind grant of interim maintenance is to say that it is a right of a person to refrain himself/herself from the starvation. It is decipherable from the copy of objection which is available on record, annexed as Annexure No.4 to this instant revision that opposite party no.2 had mentioned that he is able to earn about 2000/- per month. Despite this fact, learned trial Court did not think it proper to pass appropriate order in respect of the facts of aforesaid case which is being palpably illegal cannot be sustained in law.
Accordingly, the instant criminal revision is allowed and the impugned order being palpably illegal deserves to be set aside which is hereby set aside with a direction to learned trial Court to decide the application for interim maintenance afresh within six weeks from the date of receipt of production of a certified copy of this order without being influenced by any observations made herein above, but of course, after affording the opportunity of hearing to the parties in accordance with law.
Order Date :- 26.9.2022
Mahesh
