Allahabad High Court
Yogesh Kumar vs State Of U.P. And Another on 26 July, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:149342
Court No. - 50
Case :- CRIMINAL REVISION No. - 812 of 2023
Revisionist :- Yogesh Kumar
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Nasir Hussain,Akhilesh Kumar Pandey
Counsel for Opposite Party :- G.A.,Shailendra Pratap Singh
Hon'ble Ram Manohar Narayan Mishra,J.
1. Instant criminal revision has been preferred against judgment and order dated 13.01.2023 passed by Additional Sessions Judge, Court No. 2, Meerut as well as order dated 22.10.2021 passed by learned Judicial Magistrate, Mawana, Meerut. The learned Sessions Court has affirmed the order dated 22.10.2021 passed by Judicial Magistrate, Mawana, District- Meerut in which revisionist has been directed to pay Rs. 7,000/- per month as maintenance to respondent No. 2, who is his wife as interim maintenance on monthly basis, which will be payable on 10th of each succeeding month. Learned Additional Sessions Judge in impugned judgment found no fault in interim order passed by Judicial Magistrate and dismissed the appeal preferred by the revisionist husband under Section 29 of Prevention of Women from Domestic violence Act.
2. Heard the submissions of learned counsel for the revisionist, learned counsel for opposite party No. 2, learned A.G.A. for the State and perused the record.
3. Learned counsel for the revisionist submitted that he is a student, he is not having any independent source of income. Learned court below awarded interim maintenance on higher side without considering the objection raised by the revisionist. The impugned orders of both the courts are unsustainable in the eyes of law. The orders suffered from lapses and technicalities, respondent No. 2 is living separately from her husband out of her free will and choice and the revisionist never compelled her to move out of her house, she left her matrimonial home due to reason that she intended to live an ambitious life. The amount awarded as interim maintenance is excessive and there is no documentary evidence of alleged income of the revisionist. Respondent No. 2 is a temperamental lady who did not want to live with family members of the revisionist. The impugned order passed by learned court below is prompted by arbitrariness and non application of judicial mind, therefore, that order is liable to be set-aside. He further submitted that revisionist has filed an objection before court below in which he has stated that that no physical relationship could be established between the revisionist and his wife due to non-cooperation of the opposite party No. 1. She was suffering from vomiting since first night and after few days, she stated that she was not willing to get married with him and she was in relationship with some other person from whom she is pregnant and she will deliver her child in the home of the revisionist when the revisionist told these things to his family members, the revisionist and his family members had refused to keep her with them and thereafter, the applicant left her matrimonial home along with her stri-dhan and Rs. 20,000/- cash and shifted to her parental home and she delivered a child on 04.10.2021, i.e., 20 days prior to the date of order.
4. Per contra, learned counsel for the respondent no.2 stated that father of the respondent no.2 works in a private sector, he is a line man in power corporation and is a man of meager income resources. After being deserted by her husband, respondent no. 2 was compelled to depend on her father and she is not having independent source of income. Revisionist runs a shop of dust, cement and building material and earns around Rs.90,000/- per month. It is wrong to say that he is not having any source of income. There is no illegality or irregularity in impugned order passed by the learned court below. He further submitted that the marriage of respondent no. 2 and revisionist took place on 25.11.2020 and she delivered a male child on 04.10.2021. Therefore, the birth of the child took place within continuation of the marital relationship of the litigating parties and the presumption of illegitimacy will not be extended to child. There is a gap of eleven months between marriage and birth of child, therefore, the allegation of the revisionist are baseless and scandalous. The revisionist has not paid any amount towards interim maintenance awarded in impugned order, therefore, the present revision is liable to be dismissed. The impugned order was passed by court of first instance under Section 23 of Prevention of Women from Domestic Violence Act. Respondent no. 2 has levelled allegations of domestic violence against her husband. The allegations of inchastity also comes within the purview of domestic violence.
5. On perusal of order of learned Judicial Magistrate and appellate order of Additional Sessions Judge, I find no factual or legal error in the impugned orders passed by court below and the revision is devoid of merits and is liable to be dismissed.
6. The revision stands dismissed, however, it is directed that the arrears of maintenance from the date of the order dated 24.10.2021 to July, 2023 will be payable in three equal monthly installments from 01.09.2023 and the interim monthly maintenance will be paid by the revisionist on regular basis from 10.08.2023 onwards.
7. Any infraction in compliance of this order will entail in issuance of coercive process against the revisionist by court below.
Order Date :- 26.7.2023
Nitika Sri.
