Anjali Seth vs State Of U.P. And Another
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Allahabad High Court

Anjali Seth 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:78935
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 3998 of 2023
 

 
Revisionist :- Anjali Seth
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Rakesh Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

Heard Mr. Rakesh Dubey, the learned counsel for revisionist, the learned A.G.A. for State and Mr. Yashpal, the learned counsel representing opposite party-2.

Perused the record.

This criminal revision has been filed challenging the order dated 21.6.2023, passed by Additional Principal Judge, Family Court, Court No.1, Kanpur Nagar in Case No. 566 of 2020 (Anjali Seth Vs. Shivam Khanna) under section 125 Cr.P.,C. Police Station- Kohna, District- Kanpur Nagar, whereby Court below has rejected the aforesaid maintenance case filed by revisionist.

Learned counsel for revisionist submits that order impugned is manifestly illegal and therefore liable to be set aside by this Court. He, further contends that Court below has negated the claim of revisionist i.e. wife, primarily on the ground that firstly the separate living is on insufficient ground and therefore the condition precedent under section 125(4) Cr.P.C. for awarding maintenance under section 125 Cr.P.C is not satisfied. The second grund ground taken by Court below for not accepting the claim of the revisionist wife is that the income of opposite party-2 is not such that he can maintain revisionist i.e. wife.

In the submission of learned counsel for revisionist both the reasonings recorded by Court below for negating the claim of revisionist are not only perverse but also erroneous. Attention of the Court was invited to page 57 of the paper book. With reference to above, he submits that prior to the adjudication of aforesaid case, an F.I.R. was lodged by the revisionist/wife and was registered as Case Crime No. 295 of 2020 under section498A/323/506 IPC and 3/4 D.P. Act, against opposite party-2 and other in laws. He, therefore submits that since there was matrimonial dispute in existstence between the parties, therefore, separate living of revisionist/wife cannot be said to be on insufficient grounds but on sufficient ground. To buttress his submission he has relied uponthe judgement of Supreme court in Sunita Kachwaha and Others Vs. Anil Kachwaha, (2014) 16 SCC 715. According to the learned counsel for revisionist the conclusion drawn by Court below that opposite party-2/husband is a man of sufficient means and therefore no direction for payment of maintenance in favour of the wife can be issued is not only illegal, perverse but also erroneous. He has invited the attention of the Court to the recital contained in internal page 9 of the certified copy of the impugned order wherein court below has noticed the statement of the huband/opposite party-2 to the effect that he has taken a lon of Rs. 3 lakhs and is repaying the same at th rate of Rs. 5% per anumn. On the above premise, it is thus urged by the learned counsel for revisionsit that even prima facie the conclusion drawn by court below regarding the income of opposite party-2/husband is patently perverse and erroneous. It is then contended that by reason of law laid down by Apex Court in Sunita Kachwaha and Others Vs. Anil Kachwaha, (2014) 16 SCC 715, the parties to a dispute under section 125 cr.P.C. are now required to file their status and income/salary. Opposite party-2/husband has filed an application before Court below but has concealed the material facts in the same. On the above premise, the learned counsel for revisionist contends that court below ought to have drawn an adverse inference against opposite party-2 to the effect that since opposite party-2 is able bodied man, suffering no physical disability and have sufficient income, he can therefore not only maintain himself but also sustain his wife i.e. revisionist. On cumulative strength of above, it is urged by learned counsel for revisionist that order impugned cannot be sustained and is therefore, liable to be set aside by this court.

Per contra, the learned A.G.A. does not oppose the present criminal revision. However, learned counsel for opposite party-2 has vehemently opposed the present revision. He, submits that order impugned is perfectly just and legal and therefore not liable to be interfered with. Court below in order to effectively decide the dispute between the parties framed five issues/points of determination and answered each of the issue/points of determination so framed, after meticulously evaluating the pleadings and evidence on record. In view of above, findings returned by Court below on issue no.2 and issue no.4 cannot be said to be illegal, perverse or erroneous. As such, no interference is warranted by this Court.

On a specific query raised by this Court in the light of the judgement of Supreme Court in Sunita Kachwaha and Others (supra), and also the fact that on the date of adjudication of case under Section 125 Cr.P.C. the matrimonial case was pending then how it can be said that the seperate living of the wife is on insufficient ground, learned counsel for revisionist could not give any specific reply.

Having heard the learned counsel for revisionist, the learned A.G.A. for State and Mr. Yashpal, the learned counsel representing opposite party-2 and upon perusal of record this Court finds that issue/points of determination no.2 regarding separate living of the revisionist is patently illegal and perverse in view of the judgment of Supreme Court in Sunita Kachwaha and Others (supra) wherein Court has held that if the wife is living seperately on account of pendency of matrimonial dispute thus in that eventuality the seperate living of the wife on sufficient ground is on sufficinet ground. In view of above, the conclusion drawn by court below on the issue/point of determination pertaining to seperate living of the wife cannot be said to be just and legal. Sofaras the finding returned by Court below on issue/point of determination no.3 i.e. whether the husband/oppsoite party-2 is a man of sufficient means, the Court finds that opposite party-2 has made a clear admission before Court below that he has taken a loan of Rs. 3 lacs and is repaying the same with interest at the rate of 5 % per anumn. This itself will lead to an adverse inference that opposite party-2 has concealed the true and material facts regarding his income and status from court below. Court below has thus failed to draw an adverse inference and consequently returned a vagure and bald finding. The Apex Court in the case of Kiran Tomar and Others Vs. S.O. Up and Ans. 2022 SCC Online SC 1539 has observed that while deciding the income of a person in a matter pertaining to matrimonial dispute the Court must take a holistic view of the matter.

In view of the discussions made above, the order impugned cannot be sustained and is therefore liable to be set aside by this Court. As a result the present revision succeeds and is liable to be allowed.

It is accordingly allowed.

The order impugned dated 21.6.2023, passed by Additional Principal Judge, Family Court, Court No.1, Kanpur Nagar in Case NO. 566 of 2020 (Anjali Seth Vs. Shivam Khanna) under section 125 Cr.P.,C. Police Station- Kohna, District- Kanpur Nagar is hereby set aside.

Matter shall stand remanded to Court below for decision afresh. Court below shall undertake the necessary exercise within a period of three months from the date of production of certified copy of this order. The Court below shall proceed with the matter with all expedition without granting any unnecessary adjournment to either of the parties. In case an adjournment is inevitable, same shall be granted only on cost of Rs.500/- per date, payable to revisionist and vice-versa.

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

Order Date :- 2.5.2024

Arshad