Allahabad High Court
Smt. Alka And 2 Others vs State Of U.P. And Another on 1 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:37305
Reserved
A.F.R.
Court No. - 32
Case :- CRIMINAL REVISION No. - 5185 of 2022
Revisionist :- Smt. Alka And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Ram Jee Saxena,Raghuvansh Chandra
Counsel for Opposite Party :- G.A.,Ashok Kumar Pandey
Hon'ble Surendra Singh-I,J.
By means of the instant criminal revision, revisionists have assailed the judgement and order dated 13.09.2022 passed by Additional Principal Judge, Family Judge Court No.1, Meerut in Case No.07 of 2022 (Smt. Alka vs. Sohanpal @ Sonu), under Section 125 Cr.P.C.
2. By the impugned order, the trial Court has granted interim maintenance of Rs.3,000/- to the revisionist No.1 and of Rs.2,000/- to the revisionist Nos.2 and 3 per month each under Section 125 Cr.P.C. The revisionists have prayed in the revision for enhancement of maintenance allowance granted by the trial Court in their favour.
3. It has been submitted by the learned counsel for the revisionists that before calculating the quantum of maintenance, the trial court has not taken into consideration the salary of the opposite party No.2 (husband) and the status of family. It has also been submitted that opposite party No.2 is still neglecting to maintain the revisionists, who are his wife and two minor daughters. The revisionists are not capable to maintain themselves. He next submitted that finding of the trial court regarding the income of the opposite party No.2 is not based on the evidence on record. As per the evidence on record, the monthly salary of the opposite party No.2 is of Rs.30551/-, therefore, revisionists shall be entitled to atleast 1/3rd of salary of opposite party No.2 as maintenance allowance.
4. The revisionist No.1 has filed payslip of opposite party No.2, which was issued on 26.09.2022 by the Executive Engineer, Vidyutkhand-III, U.P. Awas Vikas Parishad, Kalyanpur, District Kanpur. The same has been annexed as Annexure No.1 to the revision. In this statement of salary, the gross income of the opposite party No.2 is shown as Rs. 30,551/- and net amount payable as Rs. 23,528/-.
5. Learned counsel for the revisionists has placed reliance on the following judgments of the Hon'ble Apex Court as well as this Court:-
(i) Rajnesh vs. Neha and Another, (2021) 2 SCC 324.
(ii) Smt. Kuldeep Kaur and Another Vs. State of U.P. and Another, (2012) 3 JIC 522 (AII).
6. Per contra, learned counsel for the opposite party No.2 has opposed the prayer of the revisionists and submitted that trial court has passed the impugned order on evidence on record. It has also been submitted that trial court has not given reasons for fixing the amount of maintenance allowance. It has also been submitted that opposite party No.2 having been appointed as pump operator in U.P. Awas Vikas Parishad, Kalyanpur, Kanpur under dying in harness rules and he has liability to maintain 58 years old elder brother, who is suffering from heart disease, therefore, the amount of next salary will be reduced after deducting the amount for maintenance of his brother from his monthly gross salary.
7. Heard Sri Raghuvansh Chandra, learned counsel for the revisionists, learned A.G.A. for the State and Sri Ashok Kumar Pandey, learned counsel for opposite party no.2.
8. Factual matrix of the case, in brief, is that Smt. Alka, who is revisionist No.1 in this revision filed an application under Section 125 Cr.P.C. for herself and two minor daughters alleging that revisionist No.1 was married with opposite party No.2- Sohanpal @ Sonu according to Hindu rites and rituals on 29.04.2015 and her parents spent Rs.10 Lakhs on her marriage. After marriage, she started living in her matrimonial home where her husband (opposite party No.2) and her in-laws started harassing her for not bringing sufficient dowry. On 15.03.2016, after her giving birth to a girl child, namely Tavisha, her husband and in-laws started taunting her for the same. On 09.05.2017, her husband (opposite party No.3) and in-laws beaten her and also ousted from her matrimonial home. After so many efforts made by her father and brother, they brought her back and dropped her to House No.78, Shergari Meerut on 17.06.2018. In-spite of that, her husband and in-laws continued harassing and taunting her. Meanwhile, on 11.08.2020, she gave birth to second girl child, namely, Lashika Singh. After the birth of second child, the torture and harassment of her husband and in-law also increased. On 18.12.2021, her husband and in-laws beaten her and tried to evict her from matrimonial home, then, revisionist No.1 called the police. After arrival of the police, her husband and in-laws ran away from that place. On 20.12.2021, opposite party No.2 (husband) left the revisionist No.1 and his daughters at her parental house, and thereafter, opposite party No.2 neither provided any maintenance to the revisionists nor have any contact with her. Revisionist No.1 is a domestic woman and having no source of income to maintain herself and her daughters. Opposite party No.2 is a healthy person. He is working as a Tube-well Operator in U.P. Awas Vikas Parishad, District Muzaffarnagar and earning Rs.30,000/- per month as salary. On 19.04.2021, opposite party No.2 in the presence of his brother and father of the revisionist No.1 entered into compromise with the revisionists and opposite party No.2 agreed to pay per month 50% of his salary to his wife as well as two children as maintenance allowance but opposite party No.2 did not comply the aforesaid settlement agreement arrived between them. The revisionist No.1 requires maintenance allowance of Rs.20,000/- to maintain herself and her children.
9. Even after service of notice, opposite party No.2 did not appear in the trial court. The trial court considering the notice having been sufficiently served on 24.06.2022 ordered for ex-parte proceedings against opposite party No.2. The revisionist No.1 recorded her oral evidence and produced the aadhar card as documentary evidence. The revisionist No.1 also produced affidavit of compliance on the direction by the Hon'ble Apex Court in the case of Rajnesh (supra), in which, she deposed that she has not been granted any maintenance allowance at an earlier stage and opposite party No.2 has not provided any maintenance to her.
10. On the basis of evidence on record, trial Court found that revisionist No.1 is unable to maintain herself and her two minor daughters, whereas her husband-opposite party No.2 has sufficient means and is still neglecting to maintain them. By the impugned order, the trial court granted aforesaid monthly maintenance allowance to them.
11. In the counter affidavit, opposite party No.2 has stated that he has obtained employment/job under dying in harness rules and has liability to maintain her elder brother, who is aged about 58 years and is also suffering from heart disease. He also stated that the revisionist No.1 is highly qualified and running coaching at her house.
12. The provision of Section 125 Cr.P.C. provides for maintenance of wives, children and parents. The Section 125 Cr.P.C. reads as under:-
"125.Order for maintenance of wives, children and parents.--(1) If any person having sufficient means neglects or refuses to maintain--
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, 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 proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
Explanation.--For the purposes of this Chapter--
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(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 allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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 a just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, 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.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
13. In paragraph Nos.37, 38, 39 and 40 of Rajnesh vs. Neha and Another: (2021) 2 SCC 324, the Hon'ble Apex Court has observed as under:-
"37. In Chaturbhuj v. Sita Bai [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] this Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 CrPC is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.
38. Proceedings under Section 125 CrPC are summary in nature. In Bhuwan Mohan Singh v. Meena [Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 : (2015) 4 SCC (Cri) 200] this Court held that Section 125 CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
39. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim under Section 125 CrPC came up for consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha [Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666. This judgment was referred to a larger Bench.] before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term "wife", to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition for grant of maintenance under Section 125 CrPC. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage.
40.The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings under Section 125 CrPC such strict standard of proof is not necessary. [Kamala v. M.R. Mohan Kumar, (2019) 11 SCC 491 : (2019) 4 SCC (Civ) 732 : (2019) 4 SCC (Cri) 242]."
14. The Hon'ble Apex Court in paragraph Nos.77, 78, 79 and 80 of Rajnesh vs. Neha and Another (supra) has provided for criteria for determining quantum of maintenance, which reads as under:-
" 77. The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
78. The factors which would weigh with the court inter alia are the status of the parties; reasonable needs of the wife and dependent children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. [ Refer to Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290]"
79. In Manish Jain v. Akanksha Jain [Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712] this Court held that the financial position of the parents of the applicant wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the court should mould the claim for maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependent family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able-bodied and has educational qualifications. [Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]"
15. After thoroughly discussing the numerous judgements of the Hon'ble Apex Court and this Court, the Apex Court in para-109 of Rajnesh vs. Neha and Another (supra) held that maintenance should be provided from the date of application not from the date of order. The para-109 of the aforesaid judgement reads as under:-
" 109. The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded. Even though a judicial discretion is conferred upon the court to grant maintenance either from the date of application or from the date of the order in Section 125(2) CrPC, it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 CrPC. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application."
16. The Hon'ble Apex Court in the decision of Rajnesh vs. Neha and Another (supra) has held that the husband is bound to provide maintenance allowance to his wife and children which may be upto 25% of his monthly income.
17. Considering the law propounded by the following decisions and facts and circumstances of the case, there is sufficient ground to allow the present criminal revision and enhance the amount of maintenance allowance to be paid to the revisionist Nos.1, 2 and 3.
18. In view of the aforesaid factual and legal aspect, I am of the view that the order impugned dated 13.09.2022 is erroneous and cannot survive in the eyes of law, therefore, I set aside the impugned order for the aforesaid reasons.
19. The application for enhancement of maintenance allowance filed by revisionist no.1 is allowed and it is observed that she will be entitled for Rs.4,000/- per month as maintenance allowance along with Rs.3000/- per month to revisionist Nos.2 and 3 (minor daughter of the opposite party No.2) each.
20. Thus, opposite party No.2 shall be bound to provide maintenance allowance @ of Rs.4000/- to his wife (revisionist No.1) and Rs.3000/- to his minor daughters each (revisionist Nos.2 and 3) and total Rs.10,000/- per month shall be given to the revisionists from the date of application. The arrears of maintenance allowance shall be paid by the opposite party No.2 in four equal amounts at the gap of four months. The monthly interim maintenance shall be paid regularly till 7th day of each month.
21. The present criminal revision is allowed in terms of above mentioned conditions.
22. The copy of the order be sent to the trial Court concerned for necessary compliance, forthwith.
Order Date :- 01.03.2024
Amit
