Javed vs State Of U.P. And Another
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Allahabad High Court

Javed vs State Of U.P. And Another on 10 October, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:181173
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL REVISION No. - 5319 of 2024   
 
   Javed    
 
  .....Revisionist(s)   
 
 Versus  
 
   State of U.P. and Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Revisionist(s)   
 
:   
 
Sanjay Kr. Srivastava   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A., Mariya Khatoon, Ram Kesh   
 
     
 
 Court No. - 89
 
   
 
 HON'BLE MADAN PAL SINGH, J.     

1. Heard Mr. Sanjay Kumar Srivastava, learned counsel for the revisionist, Mr. Ram Kesh, learned counsel for opposite party no. 2 and the learned A.G.A. for the State.

2. This criminal revision has been filed by the revisionist under Section 397/401 Cr.P.C. questioning the judgment and order dated 11th July, 2024 passed by the Additional Principal Judge, Family Court, Court No.1, Ghaziabad in Case No. 100 of 2019 (515 of 2015) (CNR. no. UPGZ02006697-2019) (Smt. Naushaba Vs. Javed), under Section 125 Cr.P.C. Police Station Bhojpur, District-Ghaziabad, whereby the trial court while partly allowing the application filed by opposite party no.2, has directed the revisionist to pay Rs. 6,000/- per month to opposite party no.2 (wife) towards maintenance allowance from the date of filing of the instant application.

3. The sole and solitary contention of the learned counsel for the revisionist is that the monthly maintenance allowance as awarded by the trial court under the impugned judgment in favour of opposite party no. 2 to the tune of Rs. 6,000/- per month from the date of filing of instant application is too excessive and exorbitant and not commensurate with the net income of the revisionist as he has no regular source of income. He then submits that the revisionist a temporary labourer and he somehow earns Rs. 6,000/- to Rs. 7,000/- per month for his livelihood inasmuch as his mother is suffering from cancer and her treatment is going on at All India Institute of Medical Sciences, New Delhi in which most of the income of revisionist has been spent. He next submits that even though trial court has treated the revisionist as a labourer, as there was no documentary evidence adduced during the course of trial qua the monthly income of the revisionist, the trial court has awarded Rs. 6,000/- in favour of the opposite party no.2, which is 90% of the total income of the revisionist, which is per se illegal and not as per the law laid down by the Hon'ble Supreme Court in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324.

4. On the above premise, learned counsel for the revisionist prays that since the amount of maintenance allowance as awarded by the trial court under the impugned judgment is too excessive and exorbitant and is not in accordance with the guidelines framed by the Apex Court, therefore, the impugned judgment is liable to be set aside.

5. On the other-hand, the learned counsel for opposite party no. 2 and the learned A.G.A. for the State have opposed the submissions made by the learned counsel for the revisionist by submitting that the trial court has not committed any illegality or infirmity in passing the impugned judgment and awarding Rs. 6,000/- per month in favour of opposite party no. 2 from the date of filing of application under Section 125 Cr.P.C., so as to warrant any interference by this Court in exercise of revisional jurisdiction.

6. Besides the above, learned counsel for opposite party no. 2 submits that the revisionist, being an able bodied person, has motor cycle and a house in his village, he has also shops of cosmetics and also shoes and slippers at Civil Khas through which the revisionist obtains sufficient income, therefore, he is able to maintain his wife i.e. opposite party no.2. However, learned counsel for opposite party no.2 admits that no documentary evidence has been led before the trial court from any side qua the aforesaid income of the revisionist. Learned counsel for the opposite party no.2 lastly submits that during the course of trial, a baby child was born from the wedlock of revisionist and opposite party no.2. As such, the amount of monthly maintenance allowance as awarded by the trial court cannot be said to be excessive.

7. Except the above issue, neither the learned counsel for the revisionist nor the learned counsel for the opposite party no.2 and learned A.G.A. have stated anything else on any other issue.

8. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties as well as perusal of record including the impugned judgment, this Court finds that it is an admitted case that the opposite party no. 2 is legally wedded wife and opposite party no. 3 is real son of the revisionist and as per the settled law, the revisionist cannot shirk from his pious liabilities for maintaining his legally wedded wife and son.

9. So far as separate living of the opposite party no.2 from her husband i.e. revisionist is concerned, the trial court has categorically recorded that the opposite party no.2 is living separately from her husband at her parental house with sufficient cause. In the opinion of the Court, the finding returned by the trial court, while passing the impugned judgment, on the said issue is a categorical finding of fact. Since this Court sits in a revisional jurisdiction, it cannot embark upon a re-appreciation of evidence as suggested by the learned counsel for the revisionist. The evidence led before the trial court has been dealt with by the trial court while passing the impugned judgment. Therefore, this Court is of the view that this Court cannot substitute its own finding while exercising its powers under Section 397/401 Cr.P.C.

10. Qua the income of the opposite party no.2, from the perusal of the impugned judgment, it transpires that there is nothing on record to establish that she is a working lady and she has any source of income in order to maintain herself. The trial court has also opined that opposite party no.2 has no source of income.

11. Now the question is up for consideration before this Court is as to what is the income of the revisionist? It is admitted position that there is no documentary evidence adduced during the course of trial that the revisionist being an able bodied person has a motor cycle, a house in his village and he has also shops of cosmetics and slipper and shoes from which receives handsome money. However, perusal of the entire record goes to show that the revisionist has not claimed that he is not physically deformed. During the course of argument, learned counsel for the revisionist points out that the revisionist is a labourer only and also the trial court has treated him as a labourer.

12. The Hon'ble Supreme Court of India in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324 has opined that since it is the sacrosanct duty of the husband to provide financial support to the wife, the husband is required to earn money even by physical labour, if he is able-bodied, and cannot not avoid his obligation.

13. In that circumstance, at the present time, in the opinion of the Court, if the revisionist, who is an able bodied person, is treated as a labourer at present, he would earn Rs. 600/- per day and his monthly income would be Rs. 18,000/- per month.

14. The Hon'ble Supreme Court of India in the cases of Rajnesh Vs. Neha (Supra) and Kulbhushan Kumar (Dr) v. Raj Kumari reported in (1970) 3 SCC 129, has observed that the maintenance allowances can be granted up to the extent of 25% of the net income of the husband. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should 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.

15. Keeping in view of the income of revisionist as well as guidelines issued by the Hon'ble Apex Court in Rajnesh v. Neha and Kulbhushan Kumar (Dr) (Supras), this court is of the considered opinion that 25% of the net income of the revisionist i.e. Rs. 18,000/- would be Rs. 4,500/-. Thus, the amount of maintenance allowance fixed by the court below is not commensurate as per the law laid down by the Hon'ble Supreme Court in the aforesaid cases, hence, the monthly maintenance allowance as awarded in favour of the opposite party no. 2 by the trial court under the impugned judgment is reduced to Rs. 4,500/- per month from Rs. 6,000/- per month to the opposite party no.2 (wife) and the same shall be payable from the date of filing of the application under Section 125 Cr.P.C.

16. Consequently, judgment and order dated 11th July, 2024 passed by the Additional Principal Judge, Family Court, Court No.1, Ghaziabad in Case No. 100 of 2019 (515 of 2015) (CNR. no. UPGZ02006697-2019) (Smt. Naushaba Vs. Javed), under Section 125 Cr.P.C. Police Station Bhojpur, District-Ghaziabad, is modified to the extent that now the revisionist shall pay Rs. 4,500/- per month to opposite party no.2 towards maintenance allowance from the date of filing of application. Looking into the fact that the revisionist is a labourer, therefore, it would be too harsh for him to pay entire arrears of the maintenance allowance from the date of filing of application to the opposite party no. 2 in one stroke. Therefore, this Court directs the revisionist to pay the entire arrears of monthly maintenance allowance to opposite party no. 2 in 24 equal monthly installments and the first installment shall commence from 15th day of November, 2025.

17. It is also clarified that the arrears of amount towards maintenance allowance as awarded by the court below shall be calculated on the basis of amount of maintenance allowance as fixed by this Court herein above and after that if it is found that any amount has been paid in excess, the same shall be adjusted from the amount to be paid.

18. The present criminal revision is, accordingly, partly allowed.

19. There shall be no order as to costs.

(Madan Pal Singh,J.)

October 10, 2025

Sushil/-