Smt. Shivagi Bansal And Another vs State Of U.P. And Another
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Allahabad High Court

Smt. Shivagi Bansal And Another vs State Of U.P. And Another on 2 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:78710
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 3424 of 2022
 

 
Revisionist :- Smt. Shivagi Bansal And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Aditya Gupta,Harsh Vardhan Gupta,Raj Kumar Kesari
 
Counsel for Opposite Party :- G.A.,Veerendra Singh
 
and
 
Case :- CRIMINAL REVISION No. - 3456 of 2022
 

 
Revisionist :- Sahib Bansal
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Deeksha Gupta,Prateek Kumar Srivastava,Sr. Advocate
 
Counsel for Opposite Party :- Aditya Gupta,G.A.,Harsh Vardhan Gupta
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Raj Kumar Kesari, the learned counsel for revisionists, the learned A.G.A. for State-opposite party-1 and Mr. Prateek Kumar Srivastava, the learned counsel representing opposite party 2 in Criminal Revision No.3424 of 2022 (Smt. Shivangi Bansal and another). I have also heard Mr. Prateek Kumar Srivastava, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Raj Kumar Kesari the learned counsel representing opposite parties 2 and 3 in Criminal Revision No. 3456 of 2022 (Sahib Bansal Vs. State of U.P. and 2 others)

2. Perused the record.

3. These criminal revisions have been filed challenging a common order, i.e. the judgment and order dated 19.07.2022 passed by Principal Judge, Family Court, Hapur in Criminal Misc. Case No. 136 of 2019 (Smt. Shivangi Bansal and another Vs. Sahib Bansal) under Section 125 Cr.P.C., Police Station-Pilkhua, District-Hapur, whereby court below has allowed the aforesaid maintenance case but has directed that monthly maintenance to the tune of Rs..15,000/- shall be payable to revisionist-1, Shivangi Bansal till she gets her first salary and @ Rs. 10,000/- in favour of revisionist-2, Kumari Rayna till she gets married or she is able to maintain herself whichever is earlier. However the amount of monthly maintenance shall be payable from the date of application i.e. 13.05.2019.

4. Criminal Revision No. 3424 of 2022 (Smt. Shivangi Bansal and another) has been filed by the daughter Kumari Rayna seeking enhancement in the amount of monthly maintenance awarded by court below whereas Criminal Revision No. 3456 of 2022 (Sahib Bansal Vs. State of U.P. and 2 others) has been filed by the husband/father challenging the monthly maintenance awarded by court below in favour of opposite parties 2 and 3.

5. At the very outset, Mr. Raj Kumar Kesari, the learned counsel for revisionists contends that revisionist-1, Smt. Shivangi Bansal has been selected in the Indian Police Service. In view of above, she does not wish to press her claim regarding enhancement of monthly maintenance awarded in her favour by court below. In view of above, the following issues now survives:

a. Whether the revisionist-2 is entitled to claim maintenance from her father.

b. Whether the amount of monthly maintenance awarded by court below in favour of the revisionists is illegal and therefore liable to be set aside by this Court.

c. Whether in the peculiar facts and circumstances of the case, the amount of monthly maintenance awarded by court below is liable to be enhanced by this Court.

6. Mr. Raj Kumar Kesari, the learned counsel for revisionists Smt. Shivangi Bansal and another has invited the attention of Court to the recital occurring at internal page 12 of the certified copy of the order impugned and on basis thereof, he contends that in the Assessment Year/2018-19 the gross income of opposite party-2 was shown as Rs. 2.60 crores in the income tax return. However in sharp contrast to the above in paragraph 16 of the written statement/objection filed by opposite party-2 before court below, he has taken a very strange plea. For ready reference paragraph 16 of the written statement filed by opposite party-2 before court is extracted herein under:

16-?? ?? ????????????? ??? ???? 16 ?? ??? ??????? ???? ?? ??? ??? ???? ???? ??? ????? ???? ??? ?? ??????? ????????? ???????? ?? ????? ?? ??? ??????? ?? ??????? ?? ?? ??????? ?? ?? ?? ?????? ? ???? ???? ?? ?????? ?? ???????? ?? ??? ?? ?? ???? ??????? ?????????? ?? ??? ???? ??? ???? ????? ??? ???? ?? ?????? ??? ???? ??? ???? ????? ?????????? ?? ??????? ? ???? ??????? ????? ???? ?? ????? ?????? ?? ??? ?????????? ???? ???? ???? ???? ?? ??????? ?? ??? ?? ??? ??? ?? ???? ?????? ??? ???? ???? ?? ????? ???? ???

7. However, apart from above, raising aforesaid vague plea, an affidavit in compliance of the judgement of Apex Court in Rajnesh Vs. Neha and Another (2021) 2 SCC 324 was also filed by opposite party-2 before court below. However in the said affidavit, material and correct facts with regard to income/salary and status were deliberately concealed by opposite party-2. Court below upon appraisal and appreciation of the material on record came to the conclusion that so far as the claim for monthly maintenance by revisionist-1, Smt. Shivangi Bansal is concerned, the same is tenable and accordingly awarded Rs.15,000/- towards monthly maintenance but till she gets her first salary as the wife Smt. Shivangi Bansal stands selected in Indian Police Service. However, the court below has only awarded Rs.10,000/- towards monthly maintenance in favour of the minor daughter.. On the above conspectus, the learned counsel for revisionists contends that there is nothing in the order impugned to indicate that as to on what basis court below has held that amount of monthly maintenance awarded in favour of revisionsits shall either be 1/4th or 1/3rd of the income of opposite party and further shall be sufficient for the well being of the minor daughter. In the submission of the learned counsel for revisionists, the court is the ultimate guardian of the minor. As such court below was under a legal obligation to be more diligent. However, in derogation of above and in ignorance of the future of the minor, the court below in exercise of it's jurisdiction in a casual and cavalier fashion has awarded a meager sum of Rs. 10,000/- per month only towards monthly maintenance in favour of the daughter. The same admittedly does not commensurate with the status of the parties. As such amount of maintenance awarded by court below is not based upon facts but mere hypothesis. On the above conspectus, he therefore contends that order impugned passed by court below in so far as it relates to the minor daughter is concerned, cannot be sustained and therefore liable to be modified by this Court.

8. Per contra, the learned A.G.A. does not oppose the present criminal revision. However, the learned counsel representing opposite party-2 has vehemently opposed this criminal revision. In the submission of the learned counsel representing opposite party-2 since amount of monthly maintenance awarded by court below in favour of opposite party-2 by means of order impugned dated 19.07.2022, is clearly illegal, therefore, opposite party-2 has challenged the same by means of a separate revision.

9. According to Mr. Prateek Kumar Srivastava, the learned counsel for revisionist husband/father of minor, since no conclusive evidence was filed before court below by the husband/father therefore there was no such material before court below on the basis of which a conclusive finding could be recorded by court below regarding the income of revisionist. Referring to the judgement of Apex Court in Kiran Tomar and others Vs. State of Uttar Pradesh, 2022 SCC Online SC 1539 it is urged by learned counsel representing husband/father that in case of matrimonial dispute, the court should not award maintenance solely on the basis of income tax returns. The court should take a holistic view of the matter and thereafter decide the quantum of maintenance payable by husband/father. On the above conspectus, he therefore contends that when the aforesaid test is applied to the facts and circumstances of the present case particularly paragraph-16 of the written statement/objection filed by husband/father before court below, the amount of monthly maintenance awarded by court below is not only harsh, excessive but also irrational. As such, the same is liable to set aside by this Court.

10. Having heard the learned counsel for revisionist, the learned A.G.A.-opposite party-1 and the learned counsel representing opposite party-2 in both the revision, this Court finds that issue with regard to enhancement of monthly maintenance awarded by court below in favour of wife i.e. revisionist-1, Smt. Shivangi Bansal has been rendered infructuous and therefore requires no further adjudication by this Court inasmuch as revisionist-1, Smt. Shivangi Bansal has been selected in the Indian Police Service and is getting salary from the date of her joining and in view of the statement made by Mr. Raj Kumar Kesari, the learned counsel for revisionists that Smt. Shivangi Bansal does not wish to press her claim.

11. The second and third issues, which survive for determination in these criminal revisions is the amount of monthly maintenance awarded by court below in favor of minor daughter Kumari Rayna. Court below has awarded monthly maintenance in favour of minor daughter Kumar Rayan @ Rs.10,000/- per month. On the one hand according to Mr. Raj Kumar Kesari, the learned counsel representing mother and the daughter, the amount of monthly maintenance awarded by court below in favour of minor daughter, is irrational, inadequate and insufficient inasmuch as the same does not commensurate with the status of the parties. It is well settled that maintenance awarded under Section 125 Cr.P.C. is not like an ex-gratia payment but is a legal enforcement of the moral obligation on the part of husband/ father to maintain his wife/children. It is on the ground that, wife and daughter also have a right to live and not a right to exist. It is on account 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 husband/father. In support of above, he has referred to the judgement of the Supreme Court in Shamima Farooqui Vs. Shahid Khan (2015) 5 SCC 705. This is on the ground that wife and daughter are also entitled to have the same quality of life socially and economically as enjoyed by the husband/father.

12. When the order impugned is examined in the light of aforesaid principle laid down by Apex Court then it cannot be said that amount of monthly maintenance awarded by court below in favour of minor daughter is just and equitable. Considering the sharp contrast in between the evidence adduced by wife/daughter before court below qua the income of the husband/father as is evident from recital occurring at internal page 12 of the order impugned and the pleadings raised by the husband/father in paragraph 16 of the objection/written statement, this court finds that husband/father has deliberately concealed his real income from court below. According to the learned counsel for revisionists, the proceedings under Section 125 Cr.P.C. are the civil proceedings. Relying upon the provisions contained in Order VIII Rule 8 C.P.C., it is urged by the learned counsel for the revisionist that since denial raised by the husband/father of the revisionists is not specific denial nor any material particular were furnished in support of the said denial to rebut the evidence adduced by revisionists (wife/daughter) which is detailed at internal page 12 of the certified copy of the order impugned therefore defence raised by opposite party-2 was liable to be rejected by court below out-rightly. To buttress his submission he has referred to the judgement of Supreme Court where Court has taken a holistic view in Thangam and another Vs. Navamani Ammal 2024 SCC OnLine SC 227. For ready reference paragraphs 35 and 36 of report which are relevant for the controversy in hand are extracted herein under:

"35. Order VIII Rule 3 and 5 CPC clearly provides for specific admission and denial of the pleading in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.

36. The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line form one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion."

13. Reference at this stage be made to the judgement of the Supreme Court in Rajnesh Vs. Neha and Another, reported in (2021) 2 SCC 324 wherein following has been observed in paragraph 76.2 (f), which is extracted herein under:

" 72.6 (f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order II CPC. On filing of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the evidence Act, 1872, if it considers it necessary to do so. The income of one party is often not within the knowledge of the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income assets and liabilities of the spouse are within the personal knowledge of the party concerned. "

14. When the pleadings raised before court below is judged in the light of above, it is evident that opposite party-2, husband / father is a man of sufficient means but has deliberately not disclosed his true/real income and status before court below. A vague plea has been raised by the father/husband before court below which could not be established by any oral or documentary evidence. Considering the observation made by Apex Court in Kiran Tomar and others (supra), the court is now required to take a holistic view of the facts and circumstances of the case.

15. Having heard the learned counsel for revisionists, the learned A.G.A. for State-opposite party-1, the learned counsel representing opposite parties in both the revisions, upon perusal of record and after evaluation the material on record, particularly, the recital occurring at internal page 12 of the certified copy of the impugned order, this Court finds that the amount of monthly maintenance awarded by court below in favour of opposite party-2 is irrational, insufficient and inequitable. Furthermore, the court below while passing the order impugned has not recorded a finding that the amount of monthly maintenance awarded by court below is either approximately 1/3rd or 1/4th of the presumed income of the revisionist or how the maintenance awarded by court below commensurate with the status of the parties.. As such the amount of monthly maintenance awarded by court below in favour of the minor daughter is purely hypothetical. As such, the amount of monthly maintenance awarded by court below in favour of revisionist 2 Kumari Rayna cannot be sustained in any view of the matter. The same is therefore liable to be enhanced by this Court.

16. In view of the discussion made above, the revision filed by revisionists i.e. Criminal Revision No.3424 of 2022 (Smt. Shivangi Bansal and another) succeeds and is liable to be partly allowed.

17. It is accordingly partly allowed.

18. Since no case for interference at the behest of husband/father is made out, therefore, Criminal Revision No. 3456 of 2022 (Sahib Bansal Vs. State of U.P. and 2 others) fails and is liable to be dismissed.

19. It is accordingly dismissed.

20. The order dated 19.07.2022 passed by Principal Judge, Family Court, Hapur in Criminal Misc. Case No. 136 of 2019 (Smt. Shivangi Bansal and another Vs. Sahib Bansal) under Section 125 Cr.P.C., Police Station-Pilkhua, District-Hapur shall now stand modified. Opposite party-2 Kumari Rayna only shall be entitled to monthly maintenance @ 1.50 Lacks but form the date of this order.

21. Considering the facts and circumstances of the case, the cost is made easy.

Order Date :- 2.5.2024

YK