Ramakant Mishra vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3294 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 
Case :- CRIMINAL REVISION No. - 75 of 2023
 
Revisionist :- Ramakant Mishra
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Civil Sect. Lucknow And 3 Others
 
Counsel for Revisionist :- Chandresh Mani Shukla
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Shree Prakash Singh,J.

Heard learned counsel for the revisionist, Sri Aniruddh Kumar Singh, learned A.G.A.-I for the State and perused the material placed on record.

Instant revision has been preferred against the order dated 19.11.2022 passed by Principal Judge, Family Court, Gonda in Criminal Misc. Case No.868 of 2020 "Smt. Rindu and another Vs. Ayodhya Prasad.

Learned counsel for the revisionist submits that brief facts of the case is that son of revisionist performed marriage with the opposite party no.4 and, thereafter, dispute arose in between son of the revisionist and the opposite party no.4. Thereafter, opposite party no.4 instituted a case under Section 125 of Cr.P.C. bearing Case No.300 of 2017 wherein the order was passed on 28.2.2020 and the son of the revisionist was directed to pay Rs.3,000/- to his wife and Rs.1,000/- to his daughter as maintenance. In case of non-payment of the maintenance, an application under Section 125 (3) of Cr.P.C. was filed, which was registered as Case No.868 of 2020 wherein an order was passed on 19.11.2022 directing that maintenance shall be recovered as arrears of land revenue from the property of the revisionist. He added that the revisionist is aggrieved with the order dated 19.11.2022.

Learned counsel for the revisionist further submits that the order dated 19.11.2022 is against law as well as law propounded by the Apex Court since relation between the wife and husband is the personal relation and husband is liable to pay maintenance to his wife and that too was decided by order dated 28.11.2020 but there was no such order to provide maintenance to the opposite party no.4 by the revisionist, therefore, the order dated 19.11.2022 is unlawful and perverse.

Adding his arguments, he has placed reliance on the Judgments of the Apex Court in Vimalaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and others (2008) 4 SCC 649 and Kirtikant D. Vadodaria Vs. State of Gujarat, (1996) 4 SCC 479. He has referred para 8 of Kirtikant D. Vadodaria (Supra), which is quoted as under:-

"8. We have given serious thought and consideration to the submissions made above by the learned counsel for the appellant and notice that Dhayalal Hirachand, the husband of Respondent 2 Smt Manjulaben, has been found to be a person of sufficient means and income. It is also true that there are 5 natural born sons of Respondent 2 besides 2 daughters, who are all major. It is also a fact that Dalip one of the sons had contested the Municipal Election and two other sons are carrying on various businesses. According to the Law of the Land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract express or implied but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property, as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife. The husband cannot be heard saying that he is unable to maintain due to financial constraints so long as he is capable of earning. Similarly, it is obligatory on the part of a son to maintain his aged father and mother by reason of personal obligation. Under the old Hindu law, this obligation was imposed on the son alone, but now the present-day Hindu law extends this obligation both on sons and daughters. In this connection, it is relevant to point out that according to sub-section (1) of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu wife is entitled to the maintenance from her husband during her lifetime. She is entitled to claim maintenance from her husband so long as she is chaste subject to the conditions laid down in sub-section (2) of Section 18 of the said Act. Under the present law, as said earlier, both son and daughter are liable to maintain aged or infirm parents including childless stepmother, when the latter is unable to maintain herself. It is well settled that a son has to maintain his mother irrespective of the fact whether he inherits any property or not from his father, as on the basis of the relationship alone he owes a duty and an obligation, legal and moral, to maintain his mother who has given birth to him. Further, according to Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu is under a legal obligation to maintain his wife, minor sons, unmarried daughters and aged or infirm parents. The obligation to maintain them is personal, legal and absolute in character and arises from the very existence of the relationship between the parties. But the question before us is whether a stepmother can claim maintenance from the stepson under Section 125 of the Code. In other words, whether Section 125 of the Code includes within its fold the stepmother also as one of the persons to claim maintenance from her stepson."

Referring the aforesaid, he added that vide order dated 19.11.2022 it was directed that maintenance amount shall be recovered from 1/3rd share of the revisionist, which is against aforesaid law, as such, the case of the revisionist is covered with the ratio of the abovenoted Judgement. Therefore, the order dated 19.11.2022 may be set aside.

On the other hand, learned A.G.A. for the State has vehemently opposed the contention aforesaid and submits that in fact, husband of the opposite party no.4 is the son of the revisionist, as such, he has share in the property of the revisionist and, thus, the same can be recovered from the property of the revisionist. He also added that there is no illegality or infirmity in the order, therefore, the instant revision is liable to be dismissed.

Having heard learned counsel for the parties and after perusal of the record, it is evident that in the order impugned, it has been directed that the maintenance shall be paid from the 1/3rd part of the land which comes in the share of the husband of the opposite party no.4 and the same shall be recovered as arrears of land revenue though as per the settled law, the Husband and wife were in personal relation and only husband is liable to pay maintenance to his wife and, therefore, the maintenance amount cannot be recovered from the property of the father of the husband of the opposite party no.4. Further there is a report of Lekhpal that there is no property in the name of husband of the opposite party no.4 but this does not mean that if there is no property in the name of the husband, the maintenance shall be recovered from the property of the father of the husband.

In view of the aforesaid submissions and law propounded by the Apex Court in Vimalaben Ajitbhai Patel (supra) and Kirtikant D. Vadodaria (supra), the order dated 19.11.2022 passed by the Principal Judge, Family Court, Gonda in Criminal Misc. Case No.868 of 2020 "Smt. Rindu and another Vs. Ayodhya Prasad is hereby set aside.

However, it is left open to the Family Court to realise the amount of maintenance from the property of the husband, who is the son of the revisionist.

With these observations, the instant revision is hereby allowed.

Order Date :- 2.2.2023

Ram Murti