Allahabad High Court
Nitin Arora vs State Of U.P. And Another on 1 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:77822
Court No. - 77
Case :- CRIMINAL REVISION No. - 2594 of 2023
Revisionist :- Nitin Arora
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Chetan Chatterjee
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Chetan Chatterjee, the learned counsel for revisionist and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. Present criminal revision came up for admission on 16.11.2023 and this Court passed the following order:-
"Issue notice to opposite party No. 2 returnable at an early date.
List this case as fresh on 18.12.2023."
4. Pursuant to above order dated 16.11.2023, office has submitted a report dated 05.03.2024 stating therein that notice issued to opposite party-2 has not yet been received.
5. This criminal revision has been filed challenging the order dated 16.02.2023 passed by Principal Judge, Family Court, Saharanpur in Case No. 524 of 2020 (Muskan Vs. Nitin Arora), under Section 125 Cr.P.C., Police Station-Kutubsher, District-Saharanpur, whereby Court below has allowed aforementioned maintenance case and consequently, directed the revisionist to pay monthly maintenance to opposite party-2 @ Rs. 7,000/- from the date of order.
6. Mr. Chetan Chatterjee, the learned counsel for revisionist in challenge to the order impugned contends that since the wife of revisionist was living in adultery and a suit under Section 10 of the Hindu Marriage Act subsequently followed by a suit for divorce under Section 13 of the Hindu Marriage Act has already been instituted by the revisionist and the said suits are pending. On the above premise, he, therefore, contends that in view of the prohibition contained in Section 125(4) Cr.P.C., opposite party-2 could not press her right for monthly maintenance against revisionist under Section 125 Cr.P.C. Attention of the Court was then invited to the last paragraph at running page 18 of the paper book and on basis thereof, he contends that the amount of maintenance awarded by Court below is more than the amount of salary received by the revisionist after deduction of installments towards payment of loan from the salary of revisionist. He, therefore, contends that the amount of maintenance awarded by Court below is not only irrational, harsh but also excessive. On the above premise, he, therefore, contends that the order impugned is liable to be set aside by this Court.
7. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present criminal revision. He submits that it is an undisputed fact that opposite party-2 is the legally wedded wife of revisionist. This fact is also fortified from the fact that revisionist has himself instituted a suit under Section 13 of the Hindu Marriage Act for grant of a decree of divorce probably on the ground of adultery. In view of above, since opposite party-2 is the legally wedded wife of revisionist, therefore, revisionist is legally and morally bound to maintain her.
8. It is next contended by the learned A.G.A. that opposite party-2 has been living separately since 23.02.2020. However, there is nothing on record to show that revisionist has maintained his legally wedded wife i.e. opposite party-2 since then. As such, the revisionist has failed to discharge his moral and legal obligation towards his wife.
9. So far as the question of dis-entitlement of opposite party-2 to claim monthly maintenance under Section 125 Cr.P.C. on account of she being in adultery, the learned A.G.A. contends that this very issue is the subject matter of the suit under Section 10 of the Hindu Marriage Act filed by revisionist himself as well as the subsequent suit under Section 13 of the Hindu Marriage Act filed by revisionist. In view of the subsequent suit under Section 13 of the Hindu Marriage Act filed by the revisionist, the earlier suit under Section 10 of the Hindu Marriage Act filed by revisionist has now been virtually rendered redundant. The issue as to whether, the wife is living in adultery or not is a complex issue and require in depth analysis of pleadings and evidence that may be produced before the Court. Such an exercise cannot be undertaken by a Court of limited jurisdiction but only in appropriate proceedings either under Section 10, 11, 12 or Section 13 of Hindu Marriage Act. However, irrespective of above, Court below on the basis of material on record has returned a prima-facie finding that adultery alleged by revisionist against opposite party-2 could not be established. He, therefore, contends that in view of above, the prohibition contained in Section 125(4) Cr.P.C. is not attracted in the present case. Learned A.G.A. referring to the judgment of Supreme Court in Kiran Tomar and Others Vs. State of Uttar Pradesh and Another, 2022 LiveLaw (SC) 904, submits that Court has now held that even the ITR return should not be relied upon while calculating the amount of maintenance payable by the husband to his wife. It is a common tendency to decrease the income on account of the pendency of matrimonial dispute, therefore, Court should take a holistic view of the matter and thereafter, awarded maintenance in favour of the wife by independently considering the facts and circumstances of the case. Admittedly, a substantial portion of the salary of revisionist is being deducted towards G.P.F. etc. and it is on this ground primarily that the Court has awarded a sum of Rs. 7,000/- per month in favour of wife. The amount so awarded by Court below cannot be said to be harsh, irrational or excessive in the facts and circumstances of the case. Consequently, the growth in the cost of living, the hike in the cost of living and also the fact that the wife is living separately, the amount of maintenance awarded by Court below is fair, just and equitable.
10. It is next contended by the learned A.G.A. that it is by now well settled that grant of maintenance under Section 125 Cr.P.C. is not like an ex-gratia payment but a legal recognition of the moral obligation on the part of the husband to maintain his wife. It is in the light of above that Courts have repeatedly held that maintenance awarded under Section 125 Cr.P.C. or under Section 12 of Protection of Women from Domestic Violence Act must commensurate with the status of the parties as the claimant has a right to live and not a right to exist. This is on the ground that wife is also entitled to the same status of life socially and economically as enjoyed by the husband in view of the law laid down by Apex Court in Shamima Farooqui Vs. Shahid Khan, (2015) 5 SCC 705. When the order impugned is examined in the light of above, it cannot be said that Court below has committed a legal error in passing the order impugned. As such, present criminal revision is liable to be dismissed.
11. When confronted with above, the learned counsel for revisionist could not overcome the same.
12. Having heard, the learned counsel for revisionist, the learned A.G.A. for State and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to the present criminal revision could not be dislodged by the learned counsel for revisionist with reference to the record at this stage. Furthermore, from perusal of the order impugned, it is apparent that Court below while passing the order impugned has neither committed a jurisdictional error nor has it exercised it's jurisdiction with such material irregularity so as to vitiate the order impugned and warrant interference by this Court.
13. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.
14. It is, accordingly, dismissed.
Order Date :- 1.5.2024
Vinay
