Ajay Rao vs State Of U.P. And 2 Others
2023 Latest Caselaw 16120 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:111703
 
Court No. - 71
 
Case :- APPLICATION U/S 482 No. - 18808 of 2023
 
Applicant :- Ajay Rao
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Awadhesh Kumar Sharma,Indresh Chandra
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Awadhesh Kumar Sharma, learned counsel for the applicant, Sri B.B. Upadhyay, learned counsel for the State and perused the material brought on record.

3. The present application U/S 482 Cr.P.C. has been filed by the applicant- Ajay Rao with the following prayer:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application quashing the entire proceeding of Execution Case No. 24/22, Jyoti Paswan and another vs. Ajay Rao, under section 128 Cr.P.C. including order dated 30.1.2023 and recovery order dated 04.04.2023 passed by Principal Judge, Family Court, Gorakhpur where by directed to issue recovery warrant of Rs. 7,40,000 and further directed to issue arrest warrant through concerned police stations and further prayed to stay the further proceeding of aforesaid execution case no. 24/22, Jyoti Paswan and another vs. Ajay Rao pending in the court of Principal Judge, Family Court, Gorakhpur, during the pendency of the present application before this Hon'ble Court, or pass any suitable order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case otherwise the applicant shall suffer irreparable loss and injury."

4. The facts in the present case are that the opposite party nos. 2 & 3 being the wife and the minor daughter of the applicant moved an application u/s 125 Cr.P.C. claiming maintenance from the applicant. The said case proceeded ex-parte and vide ex-parte judgement & order dated 06.10.2021 Rs. 10,000/- was awarded to the wife and Rs. 10,000/- was awarded to the minor daughter from the date of application. The applicant moved an application dated 01.02.2023 u/s 126 (2) Cr.P.C. for recall of the said ex-parte order. An application u/s 128 Cr.P.C. was filed by the opposite party no.2 for execution of the said judgement & order. The said application u/s 128 Cr.P.C. was registered before the concerned court on 07.01.2021. The court concerned vide order dated 30.01.2023 issued recovery certificate of Rs. 4,40,000/- against the applicant. Subsequently vide order dated 04.04.2023 on an application by the wife / opposite party no.2, the same was allowed and a recovery certificate of Rs. 7,40,000/- was issued against the applicant. The present petition has thus been filed with the aforesaid prayer.

5. Learned counsel for the applicant argued that the applicant has no means of income to pay Rs. 20,000/- per month as maintenance. It is argued that the total income of the applicant is Rs. 19,113/- and after deduction he is being paid Rs. 17,049/-. It is argued that it is impossible for the applicant to pay the said maintenance. It is submitted that since an application u/s 126 (2) C.P.C. of the applicant is pending, the orders impugned issuing recovery certificates against the applicant be stayed till disposal of the application u/s 126 (2) C.P.C.

6. Per contra, learned counsel for the State opposed the prayer.

7. After hearing the learned counsel for the parties and perusing the records, it is evident that the maintenance has been awarded to the opposite party nos.2 & 3 by means of an ex-parte judgement & order. In the meantime an application u/s 126 (2) C.P.C. has been filed by the applicant. It was after the same, an application for execution u/s 128 Cr.P.C. was filed by the opposite party nos. 2 & 3 before the concerned family court. The applicant appears to have not paid a single penny to his wife and his daughter. Even on a query to learned counsel for the applicant regarding any payment being done by the applicant to them, it is stated that no payment has been done as the applicant as he has resorted to filing of an application u/s 126 (2) C.P.C. In so far as the income of the applicant is concerned, at this stage it cannot be decided as to what is the income of the applicant.

8. An able-bodied person has to be presumed to be capable of earning sufficient money so as to be reasonably able to maintain his wife and he cannot be heard to say that he is not in a position to earn enough to be able to maintain her according to the family standard. No cogent grounds have been canvassed as to why such able bodied person is unable for reasons beyond his control to earn enough to discharge his legal obligation to maintain his wife.

9. The Apex Court in the case of Shamima Farooqui v. Shahid Khan:(2015) 5 SCC 705 has held that a woman who is constrained to leave her matrimonial house is entitled to live a life as she would have lived in the house of her husband. It has been held as under:-

"14. Coming to the reduction of quantum by the High Court, it is noticed that the High Court has shown immense sympathy to the husband by reducing the amount after his retirement. It has come on record that the husband was getting a monthly salary of Rs 17,654. The High Court, without indicating any reason, has reduced the monthly maintenance allowance to Rs 2000. In today's world, it is extremely difficult to conceive that a woman of her status would be in a position to manage within Rs 2000 per month. It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that a woman suffers when she is compelled to leave her matrimonial home. The statute commands that there have to be some acceptable arrangements so that she can sustain herself. The principle of sustenance gets more heightened when the children are with her. Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 CrPC can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able-bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 CrPC, unless disqualified, is an absolute right."

(emphasis supplied)

10. The Apex Court in the case of Bhuwan Mohan Singh Vs. Meena and others:(2015) 6 SCC 353 has held that wife is also entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. It is further held that the husband cannot deprive her of the benefit of living with dignity. Para 2 of the judgment is as follows:

"2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

11. In view of the facts of the case and law, there does not appear to be any irregularity or illegality in the said orders. The proceedings are in consonance with the judgement & order of the Apex Court in the case of Rajnesh vs. Neha and another: (2021) 2 SCC 324.

12. The present application u/s 482 Cr.P.C. is dismissed.

Order Date :- 22.5.2023

AS Rathore

(Samit Gopal,J.)