Gopal Singh vs State Of U.P. And Another
2023 Latest Caselaw 27599 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193919
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 4781 of 2022
 

 
Revisionist :- Gopal Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Avinash Kumar Sharma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

Heard learned counsel for the revisionist as well as learned A.G.A. for the State and perused the record.

None has appeared on behalf of respondent No.2.

As per office report notice has already been served upon her.

The instant criminal revision has been filed against the impugned order dated 11.10.2022 passed by Additional Principal Judge, Family Court No.3, Jaunpur in Case No.793 of 2020, Smt. Chanchal Singh Vs. Gopal Singh, whereby the learned court below has allowed Application (14 Kha) under Section 125 Cr.P.C. moved the respondent No.2, the original applicant with a prayer for providing interim maintenance and the revisionist has been directed by the court below to pay Rs.2,000/- per month towards interim maintenance from the date of filing of an petition and has also granted Rs.500/- to the applicant as cost for filing of petition.

Learned counsel for the revisionist submitted that learned court below has awarded interim maintenance to the applicant without considering the fact that a decree of restitution of conjugal rights under Section 9 of Hindu Marriage Act was passed on the petition of revisionist-husband in Case No.919 of 2019, vide order dated 27.08.2020 passed by Principal Judge, Family Court, Jaunpur, but the opposite party/respondent No.2 failed to comply with the judgment and order passed under Section 9 of the Hindu Marriage Act, and instead she filed an application for interim maintenance in case under Section 125 Cr.P.C. with ulterior motive. She has also filed an objection in execution proceedings of said decree under Section 9 of Hindu Marriage Act on 15.11.2021. The said application under Section 125 Cr.P.C. was filed by the respondent No.2 on 05.11.2019 subsequent to filing of petition under Section 9 of the Hindu Marriage Act by the revisionist, whereas she moved an application for interim maintenance on 01.10.2021 after decree of the suit under Section 9 of the Hindu Marriage Act, filed by the revisionist.

Therefore, the interim maintenance order is barred by section 125 sub section 3 and 4 of Cr.P.C. which provides as under:-.

"3. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

He further submitted that despite the decree of restitution of conjugal rights, the opposite party No.2 has failed to live with the revisionist, so she is not entitled for any maintenance, as per the statutory provision under Section 125 subsection 4 of Cr.P.C. He has also submitted that when the learned court below has awarded interim maintenance of Rs.2,000/- per month from the date of filing of writ petition without application of mind. Whereas the revisionist is private driver and does not do any regular work and he is not having any regular earning. Respondent No.2 left her matrimonial home without any reason and refused to reside with the revisionist despite the decree under Section 9 of the Hindu Marriage Act.

Learned court below has not considered the objection filed by the revisionist under Section 125 of Cr.P.C. in right perspective and passed the impugned order in mechanical manner. The respondent No.2 is an earning lady and she is well educated and has qualification of B.A., M.A. and B.T.C. and all the expenses of her education were borne by the revisionist. She left the house of revisionist and also stolen valuable articles from her matrimonial home and went to her parental home. The revisionist has also lodged an FIR against the respondent No.2 and her brother-in-law.

Per contra learned A.G.A. submitted that this is a meager amount only Rs.2,000/- per month as maintenance. There is no illegality or irregularity in the impugned order passed by the learned court below and the revision deserves to be dismissed.

Section 125 (1) proviso two provides that Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this subsection, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceedings which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Learned counsel for the revisionist submitted that present application for maintenance under Section 125 Cr.P.C. was filed by the respondent, subsequent to filing of petition under Section 9 of Hindu Marriage Act by the revisionist and the impugned interim maintenance has been awarded to respondent No.2 after passing of a decree of restitution of conjugal right in favour of the revisionist and against the respondent No.2. The respondent No.2 (wife) is suppose to leave the company of her husband without any sufficient reason and her refusal to comply with the decree of the court under Section 9 of Hindu Marriage Act and further fortify disposition against her.

However, the provision of interim maintenance provides that court can or the husband to support his wife even while the case for maintenance is pending before the court. The Magistrate or the court may pass an order directing the husband to pay a monthly allowance as interim maintenance to the wife during the pendency of main petition. Interim maintenance can be passed by the court, even on the first hearing, if wife does not have any means of earning.

Awarding of maintenance is a matter of discretion of the court to issue sustenance to the wife during the pendency of inquest proceedings lodged by her. Under the second provision to Section 125(1), the Magistrate therefore may award interim maintenance and cost of litigation to the wifes. The inability of the wife to maintain herself is a condition precedent to the maintainability of her husband.

As per Section 125(1) Cr.P.C. interim maintenance to wife can be granted when she is unable to maintain herself. Maintenance means the appropriate food, clothing and lodging. The interim maintenance is granted on the basis of prima facie facts which can be placed by the parties. This is not a case of the revisionist that respondent No.2 is able to maintain herself.

The grounds taken by the revisionist in present revision is that respondent No.2 is not entitled to claim any maintenance, in view of the passing of the decree under Section 9 of the Hindu Marriage Act against her and she has refused to live with her husband without any sufficient reason will be addressed by the court during trial of the case after considering the evidence adduced by the parties, in light of the stand taken by the revisionist/respondent with regard to Section 125 (4) Cr.P.C, even if the revisionist is able to maintain the respondent No.2, his wife who is not able to maintain herself, as she is shown to have no sufficient source of income. The exparte decree of restitution of conjugal rights passed in favour of the revisionist against original applicant will not disentitle the respondent No.2, per se, to claim interim maintenance which is in the nature of an interim relief granted by the court for her sustenance during the pendency petition under Section 125 Cr.P.C. The revisionist has admitted that he works as a private driver and earns some money, but he does not get offer of driving on regular basis, whereas respondent No.2 has stated that he runs four wheeler in Chandra Bazar, District Jaunpur on rent. Be that it may, the factual position is that revisionist is able and liable to pay Rs.2,000/- as interim maintenance and Rs.500/- as cost of litigation to respondent No.2 as awarded in the impugned order.

In view of the above, I find no, illegality, irregularity or perversity in the impugned order passed by the learned court below. Accordingly, the revision is dismissed with above observations.

Order Date :- 9.10.2023

A. K. Singh