Allahabad High Court
Krishna Kumar Mishra vs State Of U.P. And Another on 4 January, 2023
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 88
Case :- CRIMINAL REVISION No. - 3539 of 2022
Revisionist :- Krishna Kumar Mishra
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Raju Ratan Chauhan
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. The present criminal revision has been filed against the judgement and order dated 30.09.2021, passed by the learned Principal Judge, Family Court, Shahjahanpur, in Misc. Case No. 47 of 2020 (Smt. Saroj Kumari vs. Krishna Kumar Mishra), under Section 125 Cr.P.C., Police Station Kotwali, District Shahjahanpur, whereby revisionist was directed to pay maintenance @ Rs. 4000/- per month to opposite party no. 2/wife, from the date of filing of application.
2. Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
3. It has been argued by learned counsel for the revisionist that impugned order is against the facts and law and thus liable to be set aside. The marriage of revisionist with opposite party no.2 has taken place about 25 years prior to the incident. The allegations of harassment of opposite party no.2, made against the revisionist are thoroughly false. The main contention of learned counsel for the revisionist is that in the impugned ex-parte order, the Court below did not consider the income of the revisionist properly and awarded maintenance @ Rs. 4000/- per month, which is quite excessive and arbitrary. The revisionist has only four bigha agricultural land and except that he has no source of income. Learned counsel for the revisionist submitted that as per income certificate issued by the office of Tehsildar Sabayajpur, Hardoi, the monthly income of revisionist is Rs. 4000 only and thus, the quantum of maintenance awarded by the Court below is quite excessive. It was further stated that the opposite party no.2 is living separately without any just cause and that revisionist has already filed a case under Section 9 Hindu Marriage Act for restitution of conjugal rights.
4. Learned A.G.A. has opposed the revision and argued that the Court below has found that revisionist has 0.04090 hectare land, whereas the opposite party no.2 has no source of income to maintain herself. It was submitted that quantum of maintenance granted by the Court below cannot be termed excessive or arbitrary.
5. Chapter IX of Code of Criminal Procedure deals with the order for maintenance of wives, children and parents. As per section 125 of Cr. P. C. if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children, whether married or not, and his father or mother unable to maintain themselves, the Magistrate First Class upon proof of such refusal or neglect direct such person to make monthly allowances and to pay the same to such persons from time to time. It is well established that object of grant of maintenance is to afford a subsistence allowance to the wife who is not able to maintain herself. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. The provisions of maintenance of wives and children intend to serve a social purpose [see Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521]. In Nanak Chand v. Chandra Kishore Aggarwal & Ors [1969 (3) SCC 802, the Supreme Court, discussing Section 488 of the old Cr.P.C, held that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], the Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It was observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375, a three-Judge Bench of the Hon'ble Apex Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. It was held the provision provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
6. From above-stated case laws, it is quite clear that Section 125 Cr. P.C is a measure of social legislation and it is to be construed liberally for the welfare and benefit of the wife and children.
7. In the instant case, it is not disputed that opposite party no.2 is legally wedded wife of the revisionist and their marriage has taken place about 25 years back. In her application, as well as in statement, the opposite party no.2 has alleged that the revisionist and his family members have harassed and assaulted her and that they have turned her out from matrimonial home on 28.04.2019, due to which she is residing at her paternal home. She has also alleged that the revisionist has performed second marriage with one Km. Varsha, without her consent and knowledge. The opposite party no.2 is an unskilled lady and she has no source of income to maintain herself. It may be stated here that the revisionist did not appear in the proceedings before the Court below to contest the case and thus, the evidence of opposite party no.2 remained unrebutted. It appears that the revisionist did not choose to file an application under Section 126(2) Cr.P.C. to recall the ex-parte judgment and order passed by the Court below. The evidence of the opposite party no.2 show that opposite party no.2 has sufficient cause to live separately from her husband/revisionist. Learned Court below has considered the 'Khasara' and 'Khatauni' and recorded finding that revisionist has 0.04090 hectare agricultural land. The evidence led by the opposite party no.2 before the Court below remained unrebutted. Considering entire facts of the matter, it is apparent that opposite party no.2 is entitled for maintenance and that the quantum of maintenance @ Rs. 4000/- per month granted by the Court below cannot be termed arbitrary or excessive.
8. At this juncture it may be stated that object of section 397 Cr.P.C is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. In this connection reference may be made to the case of Hon'ble Apex Court in State of Madhya Pradesh Vs. Deepak [Criminal Appeal No. 485 of 2019] decided on 13.03.2019.
9. Considering the material on record, it is clear that learned Trial Court has considered the material on record in correct prospective. In view of the material on record, there is no illegality or error of jurisdiction in the impugned order.
10. Thus, in view of the aforesaid facts and circumstances of the case, present criminal revision lacks merit and, accordingly, the instant criminal revision is dismissed.
Order Date :- 4.1.2023
A. Tripathi
