Allahabad High Court
Atul Agarwal vs State Of U.P.And Another on 1 March, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:38329
Court No. - 83
Case :- CRIMINAL REVISION No. - 2862 of 2023
Revisionist :- Atul Agarwal
Opposite Party :- State Of U.P.And Another
Counsel for Revisionist :- Abdul Majeed,Sufia Saba
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mrs. Sufia Saba, the learned counsel for revisionist and the learned A.G.A. for State.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 23.03.2023 passed by Additional Principal Judge, Family Court-IInd, Gorakhpur in Case No. 68 of 2015 (Smt. Neetu Agarwal Vs. Atul Agarwal), under Section 125 Cr.P.C., Police Station-Cantt, District-Gorakhpur, whereby court below has allowed aforementioned case and consequently, directed the revisionist to pay monthly maintenance to opposite party 2 at the rate of Rs. 8,000/- per month from the date of application and at the rate of Rs. 10,000/- per month from the date of order.
4. Learned counsel for revisionist contends that the order impugned in present criminal revision is unsustainable in law and fact. It is then submitted that no evidence was filed by either of the parties regarding the income of the revisionist. Therefore, court below has erred in drawing an adverse inference against the revisionist regarding his income.
5. It is then submitted that no attempt has been made by court below to find out as to whether opposite party 2 is having some income or not. The finding returned by court below on issue/point of determination no. 2 i.e. whether the opposite party 2 is living separately on insufficient grounds is perverse. In short, the submission is that court below has not exercised it's jurisdiction diligently but with material irregularity, which has vitiated the order impugned. Consequently, the present criminal revision is liable to be allowed.
6. Per contra, the learned A.G.A. has opposed the present criminal revision. He submits that it is an admitted fact that in compliance of the judgment of the Supreme in Rajnesh Vs. Neha and Another (2021) 2 SCC 324, no affidavit was filed by revisioist regarding his income or his status. Admittedly, the best evidence with regard to income was in possession of revisionist himself but in spite of above, he chose not to file the same. Therefore, revisionist cannot be granted the benefit on account of his own wrong. Learned A.G.A. has then invited the attention of Court to the order impugned in present criminal revision. On basis thereof, he submits that in the absence of any evidence led by the parties regarding the income of revisionist, court below has drawn an adverse inference against revisionist and has thus concluded that since revisionist is an able bodied man, therefore, he can earn Rs. 5,000/- per day. The said inferential finding recorded by court below cannot be said to be illegal, perverse or erroneous. Court below has further relied upon the admission made by the revisionist himself before court below that he is dependent upon his parents. As such, there is no liability upon the revisionist in respect of his parent. On the above premise, court below has awarded maintenance at the rate of Rs. 10,000/- per month. Considering the caste of the parties and the fact that opposite party 2 is residing in the city of Azamgarh, which is a Commissionerate, the status of the revisionist by any stretch of imagination cannot be inferred to be either APL or BPL. Learned A.G.A. has then taken the Court to the impugned order regarding issue/point of determination no. 2. With reference to above, he submits that court below has held that opposite party 2 is residing separately from the revisionist on account of his conduct (unnatural sex). Even though, opposite party 2 was cross-examined but nothing adverse could be culled out in her examination in chief. On the above conspectus, the learned A.G.A. submits that the findings returned by court below with regard to income of revisionist and the issue that opposite party 2 is residing separately on sufficient grounds cannot be said to be illegal, perverse or erroneous. As the findings on the said issue could not be dislodged by the learned counsel for revisionist, the conclusion so recorded by court below cannot be altered. Consequently, the present criminal revision is liable to be dismissed.
7. Having heard, the learned counsel for revisionist, the learned A.G.A. for State, the learned counsel representing opposite party 2, upon perusal of record and coupled with the fact that the objections raised by the learned A.G.A. could not be dislodged by the learned counsel for revisionist and upon perusal of the order impugned, this Court finds that court below has committed any jurisdictional error in passing the order impugned, therefore, this Court does not find any good ground to interfered with.
8. As a result, present criminal revision fails and is liable to be dismissed.
9. It is accordingly dismissed.
Order Date :- 1.3.2024
Vinay
