Allahabad High Court
Ghanshyam Chand Pathak vs State Of U.P. And 2 Others on 27 February, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:27140
Reserved
Court No. - 73
Case :- CRIMINAL REVISION No. - 3107 of 2022
Revisionist :- Ghanshyam Chand Pathak
Opposite Party :- State Of U.P. And 2 Others
Counsel for Revisionist :- A.C.Tiwari(Ac),Amit Kumar,Shyam Kishore Tripathi
Counsel for Opposite Party :- G.A.,Kumar Dhananjay,Shashank Tripathi,Syed Ali Imam
Hon'ble Raj Beer Singh,J.
1. Heard Sri A.C.Tiwari, learned counsel for the revisionist, Sri Kumar Dhananjay, learned counsel for the private opposite parties and learned A.G.A. for the State.
2. This criminal revision has been preferred against the order dated 29.06.2022, passed by learned Additional Principal Judge, Family Court, Gautam Buddh Nagar in Maintenance Case No.278 of 2018 (Smt.Neetu Sharma vs. Ghanshyam Chand Pathak), under Section 125 Cr.P.C., whereby maintenance @ Rs. 50,000/- per month has been granted to opposite party No. 2 (wife) and maintenance @ Rs. 25,000/- per month has been granted in favour of opposite party No. 3 (child).
3. It is submitted by learned counsel for the revisionist that the Family Court has not considered facts of the matter in correct perspective and that the maintenance awarded by the Family Court is excessive and arbitrary. Earlier, revisionist was working in Bengaluru as Engineer but due to the cases lodged by the opposite party No.2, revisionist has resigned on 2nd June, 2024 and now revisionist has no income. It is further submitted that opposite party No.2 is a qualified lady, having degree of M.A. and Ph.D, and she is working. In that connection, learned counsel has referred bank account details of opposite party No.2, annexed with supplementary affidavit, wherein on 2.6.2023 credit of Rs.20,200/- has been shown in account of opposite party No.2 as salary. Referring to account details of opposite party No.2, it was submitted that the opposite party No.2 has invested amount in several Kisaan Vikas Patra, the copy of which has been annexed with supplementary affidavit and thus it is apparent that opposite party No.2 has sufficient income to maintain herself but that fact has not been considered by Family Court concerned. Learned counsel has placed reliance upon case of Gaurav Vashishtha v. State of U.P. & Anr. [criminal revision no. 4498 of 2022] decided on 01.06.2023 and Amit Kumar Kachhap v. Sangeeta Toppo, [criminal revision no. 512 of 2023]
4. It has further been submitted that revisionist is ready to keep the opposite party No.2 / wife and the child with him but the opposite party No.2 / wife is not ready for the same and she has deserted the revisionist in the month of October, 2017 without any just reason. Learned counsel has referred facts of the matter and submitted that impugned order is against facts and law and that quantum of maintenance awarded by the family court is excessive and arbitrary and thus the same is liable to be set aside.
5. Learned counsel for opposite party No.2 has opposed the revision and submitted that there is no illegality or perversity in the impugned order. The Family Court has considered entire facts and position of law and reasonable amount of maintenance was granted to the opposite party Nos.2 and 3. The revisionist is working as Software Engineer at Bengaluru and when the case was decided by the Family Court, the revisionist was getting salary of about Rs.2,50,000/- per month. The contention that revisionist has already resigned is false and even in execution proceedings, when recovery certificate was issued, the concerned revenue authority has mentioned in the report that it was informed that revisionist is working in Bengaluru as Software Engineer and he had no moveable or immoveable property. It is further submitted that there is no illegality or perversity in the impugned order and thus, no interference is called in the impugned order.
6. I have heard learned counsel for the parties and perused the record.
7. Before proceeding further it would be apt to refer the provisions of Section 125 Cr.P.C. which 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 [* * *] [The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, w.e.f. 24.9.2001.], 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.]
(2) Any such allowance for the maintenance or interim maintenance and expenses for 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.
(4) No wife shall be entitled to receive an [allowance for the maintenance or the 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."
8. Chapter IX of Code of Criminal Procedure deals with the order for maintenance of wives, children and parents. As per section 125 of Cr. P. C. if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children, whether married or not, and his father or mother unable to maintain themselves, the Magistrate upon proof of such refusal or neglect direct such person to make monthly allowances and to pay the same to such persons from time to time. It is well established that object of grant of maintenance is to afford a subsistence allowance to the wife who is not able to maintain herself. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. The provisions of maintenance of wives and children intend to serve a social purpose [see Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521]. In Nanak Chand v. Chandra Kishore Aggarwal & Ors [1969 (3) SCC 802], the Supreme Court, discussing Section 488 of the old Cr.P.C, held that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], the Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It was observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375, a three-Judge Bench of the Hon'ble Apex Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. It was held the provision provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
9. In case of Gaurav Vashishtha (supra), relied upon by learned counsel for the revisionist, the Co-ordinate Bench of this Court has held as under:-
"The provision of Sections 125(4) Cr.P.C. is very clear that no wife shall be entitled to receive any maintenance from her husband if she refused to live with her husband. Here in the present case the opposite party no. 2 had left her matrimonial home on her own volition on 25th December, 2017. Since she had left on her own free will she is not entitled to get the benefit of maintenance, as per Section 125 (4) Cr.P.C.
In view of the aforesaid fact and circumstances, the impugned judgment and order dated 30.08.2022 passed by the learned Additional Principal Judge, Family Court, Mathura in Case No. 882 of 2019, under section 125 Cr.P.C., suffer from illegality & perversity and is accordingly set aside.
The revision is, therefore, allowed."
10. In the case of Amit Kumar Kachhap v. Sangeeta Toppo, (supra), the High Court of Jharkhand has held as under:-
"16. In view of the overall evidence adduced on behalf of both the parties, it is found that the respondent-applicant has been residing aloof from the husband without any reasonable cause. Accordingly, this point of determination is decided in favour of the petitioner-husband and against the opposite party-wife. In consequence thereof, in view of Section 125 (4) of the Code of Criminal Procedure, 1973 she is not entitled to any amount of maintenance."
11. From above-stated case laws, it is quite clear that Section 125 Cr. P.C is a measure of social legislation and it is to be construed liberally for the welfare and benefit of the wife and children. It is also clear from provisions of Section 125(4) CrPC and aforesaid case laws that no wife shall be entitled to receive any maintenance from her husband if she is living in adultery or if without any sufficient reasons, she refuses to live with her husband.
12. In the instant matter one of the contention raised by learned counsel for the revisionist is that the opposite party No. 2 has left the matrimonial home and refused to live with revisionist without any just cause. It was submitted on 04.11.2017 the opposite party No. 2 has left her matrimonial home and she along with her sister went to her parental home. On 14.11.2017 she was brought back to Bulandshahr but on 16.11.2017 brother of opposite party No. 2 came there and abused and misbehaved with the family members of revisionist and thereafter the opposite party No. 2 has left matrimonial home with her brother. The revisionist tried to bring her back but she refused. The case of the opposite party No. 2 / wife is that she was harassed on account of dowry. In her application under section 125 CrPC, she has clearly stated that sufficient dowry articles and cash were given in her marriage to the revisionist and his family members but after marriage revisionist has refused to keep her with him in Bengaluru, where he was working as software engineer. She has categorically alleged that revisionist has refused to keep her with him in Bengaluru and he started harassing her. It was stated by the opposite party No. 2 that on 07.10.2017 she has suffered premature delivery and given birth to a girl child and the child was continuously under treatment. After birth of said girl child, revisionist and his family members have harassed her and started making demand of dowry and on that account she was subjected to cruelty. The opposite party No. 2 has mentioned several instances of cruelty and harassment in her application under Section 125 Cr.P.C. It was also pointed out on behalf of opposite party No. 2 that after registration of case under Section 498-A IPC and 3/4 D.P. Act against the revisionist, in mediation proceedings revisionist and his family members have refused to keep the opposite party No. 2 and her child with them and mediation proceeding were failed. The revisionist has withdrawn the case filed under Section 9 of the Hindu Marriage Act by stating that he wants to file a petition for divorce. Considering entire facts and material on record, it cannot be said that the opposite party No. 2 has refused to live with revisionist without any sufficient reason. In view of the attending facts and circumstances of the case, the case laws referred on behalf of the revisionist, are not applicable in the instant matter inasmuch as the facts of the present case are on different footing. Thus, the Family Court has rightly held that the opposite party No. 2 / wife is entitled for maintenance.
13. So for the question of quantum of maintenance is concerned, it is well settled that objective of granting maintenance is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the failure of the marriage. The factors which would weigh with the court include the status of the parties; reasonable needs of the wife and dependent children; whether the claimant / wife 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; reasonable costs of litigation for a non-working wife. In this connection a reference may be made to case of Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7 and Vinny Parmvir Parmar v. Parmvir Parmar, (2011) 13 SCC 112. 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 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, have also to be taken in to 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.
14. Thus, a just balance must be drawn considering all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic and it should be neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The purpose of the provision is to safeguard the wife from financial suffering due to lack of money.
15. In the instant matter by impugned order dated 29.06.2022 the Family court has granted maintenance @ Rs. 50,000/- per month to the opposite party No. 2/wife and maintenance @ Rs. 25,000/- per month in favour of opposite party No. 3/child. The opposite party No. 2 / wife has alleged that revisionist is a software engineer and he is working in Bengaluru. Though the revisionist has denied any such employment and it was alleged that he has resigned from his job but the learned Family Court has found that regular salary was being credited in bank account of the revisionist and revisionist could not clarify the same. In month of June 2022 amount of Rs 2,11,360/- was credited in bank account of revisionist. After considering evidence the Family court has held that revisionist was working in a software company and his salary is about 2,00,000/ to 2,50,000/ per month. Considering entire facts it appears that revisionist was getting salary of more than Rs. 2,00,000/- per month. However, it could not be disputed that the opposite party No. 2 / wife is a qualified lady, having degree of M.A. and Ph.D., and that in her bank account on 02.06.2023 credit of Rs 20,200/ was shown as salary and she has invested some amount in Kisaan Vikas Patra, the copy of which has been annexed with supplementary affidavit. Though the opposite party No. 2 has denied that she was/is doing any job but from the details of her bank account it appears that she has some source of income. However, for a sake of arguments even if it presumed that she was working and getting salary of Rs 20,000/, it would not disentitle her from getting reasonable amount of maintenance. As observed earlier, the status of the parties, reasonable needs of the wife and dependent child and financial status of the parties have to be taken into consideration. In view of material on record alleged income of the opposite party No. 2 would not be sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home. Taking cumulative effect of entire facts it appears that the amount of maintenance awarded by the Family Court to the opposite party No. 2 and 3 is on somewhat higher side. In view of attending facts of the matter, the amount of Rs 40,000/- per month for the opposite party No. 2/ wife and an amount of Rs 20,000/- per month for the opposite party No. 3/ child, would be just and reasonable amount of maintenance. Thus, the amount of maintenance awarded by the Family Court is liable to be reduced to that extent.
16. In view of aforesaid, it is directed that the revisionist shall pay Rs. 40,000/ (forty thousands) per month to the opposite party No. 2 / wife and Rs 20,000/ per month for the opposite party No. 3 / child, from the date of application. The amount of maintenance shall be payable by 10th date of every month as directed by the Family Court. The impugned judgment and order stand altered to this extent.
17. Revision is disposed of in above terms.
Order Date :- 27.02.2025
Anand
