Shiv Kumar vs State Of U.P. And 2 Others
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Allahabad High Court

Shiv Kumar vs State Of U.P. And 2 Others on 29 October, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:190257
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL REVISION No. - 5759 of 2024   
 
   Shiv Kumar    
 
  .....Revisionist(s)   
 
 Versus  
 
   State Of U.P. And 2 Others    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Revisionist(s)   
 
:   
 
Shahabuddin   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A., Surendra Nath Yadav   
 
     
 
 Court No. - 89
 
   
 
 HON'BLE MADAN PAL SINGH, J.     

1. Heard Mr. Ram Kumar Pandey, Advocate holding brief of Mr. Shahabuddin, the learned counsel for the revisionist, Mr. Surendra Nath Yadav, learned counsel for opposite party nos.2 and 3 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. for quashing/setting aside the judgment and order dated 12th August, 2024 passed by the Principal Judge, Family Court, Sambhal at Chandhausi in Case No. 433 of 2023 (UPSL020007782023) (Anita & Another VS. Shiv Kumar), under Section 125 Cr.P.C. Police Station-Rajpura, District-Sambhal, whereby the trial court, while partly allowing the application filed by opposite party nos.2 and 3, has directed the revisionist to pay Rs. 6,000/- per month to opposite party no.2 (wife) and Rs. 3,000/- per month to opposite party no.3 (son) towards maintenance allowance from the date of filing of 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 nos. 2 and 3 is too excessive and exorbitant and not commensurate with the net income of the revisionist as he has no source of income. He then submits that trial court, without any documentary evidence, has only on the basis of oral averments made before that revisionist's father has 25 bighas' agricultural land from which he earns Rs. 3 lakh annually, and also has a tractor, a tube-well and five buffaloes from which the revisionist earns Rs. 20,000/- per month, has assessed wrong monthly income of the revisionist and has awarded the monthly maintenance allowance in favour of opposite party nos.2 and 3 under the impugned judgment, which is not correct in the eyes of law.

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 nos.2 and 3 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 monthly maintenance allowance in favour of opposite party nos. 2 and 3 referred to above, so as to warrant any interference by this Court in exercise of revisional jurisdiction. They then submits that the amount of maintenance allowance as awarded by the trial court in favour of opposite party nos. 2 and 3 under the impugned judgment cannot be said to be excessive in any manner and is in commensurate with the income of the revisionist and not de hors the rules.

6. Besides the above, learned counsel for opposite party nos.2 and 3 submits that the revisionist's father has 25 bighas' agricultural land, a tractor, a tube-well from which he earns 3 lakhs per annum and he has also five buffaloes from which he earns Rs. 20,000/- per month, therefore, he is able to maintain his wife and son i.e. opposite party nos.2 and 3 respectively. However, no documentary evidence has been led before the trial court from any side qua the aforesaid income of the revisionist.

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 of the revisionist, whereas opposite party no. 3 is his real son and as per the settled law, the revisionist cannot shirk from his pious liabilities for maintaining his legally wedded wife and also his real daughter 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 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. So far as the monthly income of the revisionist is concerned, this Court may record that the revisionist himself has admitted before this Court in his affidavit filed before the trial court as per the law laid down by the Hon'ble Supreme Court of India in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324, he claims to be a labourer and he somehow earns Rs. 12,000/-per month when on the other hand, learned counsel for opposite party nos. 2 and 3 claims that the father of the revisionist has 25 bighas' agricultural land, a tractor, tube-well from which he earns Rs. 3 lakhs annually and from five buffaloes he earns Rs. 20,000/- per month. However, for proving the said income of the revisionist, no documentary evidence has been adduced during the course of trial on behalf of the opposite party nos. 2 and 3.

12. Considering the fact that there is no evidence as to what is the exact monthly income of the revisionist, this Court is constrained to presume that the revisionist being able bodied person is a labourer and looking the present scenario, current inflation, cost of living, food, clothing, medical expenses etc., his per day income would be Rs. 6,000/- per day and in that circumstance, his monthly income would be Rs. 18,000/- per month.

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

14. 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.

15. 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.

16. Keeping in view 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 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 and 25% of Rs. 18,000/- per month would be Rs. 4,500/- per month. As such, Rs. 4,500/- towards total monthly maintenance allowance in favour of opposite party nos. 2 and 3 is just reasonable and realistic. Accordingly, the amount of monthly maintenance allowance as awarded by the trial court under the impugned judgment is reduced to total Rs. 4,500/- per month in fovour of opposite party no.2 (wife) and opposite party no.3 (son) from total Rs. 9,000/- per month and the same shall be payable from the date of filing of instant application.

17. Consequently, the impugned judgment and order dated 12th August, 2024 passed by the Principal Judge, Family Court, Sambhal at Chandhausi in Case No. 433 of 2023 (UPSL020007782023) (Anita & Another VS. Shiv Kumar), under Section 125 Cr.P.C. Police Station-Rajpura, District-Sambhal is modified to the extent that now the revisionist shall pay Rs. 3,000/- per month in fovour of opposite party no.2 (wife) in place of Rs.6,000/- per month and Rs. 1,500/- per month to opposite party no.3 (son) from Rs. 3,000/- per month towards maintenance allowance from the date of filing of instant application. Since the revisionist has no regular source of income, it would be too harsh for him to pay arrears of maintenance allowance as directed above in one stroke. This Court therefore, provides that the same shall be paid by the revisionist in 10 monthly equal installments. The first installment shall commence from 10th November, 2025.

18. 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.

19. Since the revisionist is reported to be in jail pursuant to the recovery proceedings, this provides that in case the revisionist deposits a bank draft of Rs. 40,000/- drawn in the name of opposite party no.2, namely, Anita towards payment of arrears of maintenance allowance as awarded by the trial court, within two weeks from today, he shall be released from jail and thereafter he shall also pay the remaining amount of arrears of maintenance allowance within two weeks thereafter.

20. In case he fails to comply with any of the above direction, the trial court shall be freed to proceed against him in accordance with law.

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

22. There shall be no order as to costs.

(Madan Pal Singh,J.)

October 29, 2025

Sushil/-