Aaisha And Others ...... ... vs State Of Uttarakhand And Another
2022 Latest Caselaw 2452 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Criminal Revision No. 94 of 2020


Aaisha and Others                              ...... Revisionists

                                Vs.

State of Uttarakhand and another              ..... Respondents

Present:-
Mr. Mohd. Matlub, Advocate for the revisionists.
Mr. V.K. Gemini, D.A.G. assisted by Mr. Lalit Miglani, A.G.A. for the
State.
Mr. Akhil Kumar Sah and Mr. Rajesh Joshi, Advocates for the
respondent no.2.

                                 With

            Criminal Revision No. 752 of 2019


Mohd. Sartaaj                                  ...... Revisionist

                                Vs.

State of Uttarakhand and Others               ..... Respondents

Present:-
Mr. Akhil Kumar Sah and Mr. Rajesh Joshi, Advocates for the
revisionist.
Mr. V.K. Gemini, D.A.G. assisted by Mr. Lalit Miglani, A.G.A. for the
State.
Mr. Mohd. Matlub, Advocate for the respondent no.2.



                           JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Both these revisions arise from one

common impugned, which is passed in Misc. Criminal

Case No.324 of 2015, Smt. Aaisha and Others Vs. Mohd.

Sartaaj, by the Judge, Family Court, Nainital ("the case")

on 16.11.2019, therefore, they are decided by this

common judgment.

2. In this judgment, reference to the

revisionist(s) and the private respondent(s) shall have

reference to Criminal Revision No.94 of 2020.

3. Heard learned counsel for the parties and

perused the record.

4. The record reveals that the revisionist no.1,

Smt. Aaisha, filed an application, seeking maintenance

from the respondent no.2 ("the private respondent"), who

is her husband, for herself and her two minor children,

who are the revisionist nos. 2 & 3. That is how the

proceedings of the case were instituted. The private

respondent filed his objections to the application filed

under Section 125 of the Code of Criminal Procedure,

1973 ("the Code"). Thereafter, the parties adduced

evidence and by the impugned judgment and order, the

private respondent has been directed to pay Rs.

10,000/- per month to the revisionist no.1, Smt. Aaisha,

and Rs. 2,500/- to each of the revisionist nos.2 & 3. The

impugned order also reflects that interim maintenance

order was also passed in the case. The revisionists have

assailed the impugned judgment and order on the

ground of inadequacy of the amount of maintenance

granted to them. On the other hand, the private

respondent has challenged the impugned judgment and

order in Criminal Revision No.752 of 2019 on the ground

that the amount of maintenance which has been

granted, is on the higher side.

5. Learned counsel for the revisionists would

submit that, in fact, the salary of the private respondent

is Rs. 61,000/-. Therefore, the amount of maintenance,

that has been awarded to the revisionists needs to be

enhanced. He referred to a document, which is filed in

the revision, but admits that, that document was not

filed before the court below. Even otherwise, learned

counsel for the private respondent would submit that

out from the document, which has been filed by the

revisionists, it is categorically clear that the monthly

salary of the private respondent is not Rs. 61,000/-

instead it is much below Rs. 40,000/-. That argument

would be discussed in little detail, in a short while.

5. Learned counsel for the private respondent

would submit that, in fact, the gross salary of the private

respondent is Rs. 37,000/-; he has other liabilities also;

there are deductions like insurance, income tax, etc; he

has his father, mother, brother, sister & grandmother to

look after at home; his younger brother is suffering with

cancer, he has to look after him.

6. This is a revision. The scope is quite

restricted to examine the correctness, legality and

propriety of the impugned judgment/order. In a revision,

generally, the appreciation of evidence is not done unless

the finding is perverse, i.e., against the weight of

evidence or the material evidence is ignored or irrelevant

material is considered.

7. Admittedly, in the proceeding under

Section 125 of the Code, it was categorical case of the

revisionists, in their application itself, that the private

respondent is in Army and gets Rs. 50,000/- per month

salary. No document, as such, was filed by the

revisionists in the case. In her examination in chief, the

revisionist no.1 reiterated the version of her application.

It is surprising that both the revisionist no.1 and the

private respondent could not file any document with

regard to the salary of the private respondent.

Surprisingly, the private respondent, though filed his

objection, denied that he is an Engineer in Indian Air

Force and in Para 12 of his objections, he would submit

that he is a Sepoy in the Indian Armed Force. But, he did

not reveal his salary. He did not file any salary

certificate, which would have been the best evidence of

his income. In his cross-examination, when confronted,

the private respondent has admitted, on 01.08.2019,

that he receives Rs. 36,700/- per month salary.

8. Learned counsel for the revisionists has

pressed on a document, which is filed by the revisionists

in the revision to argue that the salary of the private

respondent in the month of June, 2018, was Rs.

61,389/-. This document has been discussed by the

learned counsel for the private respondent to argue that,

in fact, it has Rs. 6,823/- arrears and Rs. 10,445/-

other adjustments, which are earlier dues. He would

submit that the salary is not Rs. 61,000/-, it is a

cumulative statement of the payment, which the private

respondent received in a particular month. Even this

document reveals that the amount, which was credited

in the account of the private respondent on that date

was Rs. 48,320/-, and it has admittedly arrears of Rs.

6,823/- & the other adjustments of Rs. 10,445/-. If both

these (Rs.6,829/-+ Rs.10,445/-) are reduced from Rs.

48,320/-, the total would come around Rs. 32,000/-

but, as stated, the private respondent himself has

admitted that his salary was Rs. 36,700/-.

9. In the course of argument, it is argued that

the private respondent has to maintain his mother,

father, grandmother, sister and brother. They are

dependent on him. But, learned counsel for the private

respondent admits that these facts have neither been

stated by the private respondent in his objections nor

has he stated them in his deposition in the court below.

Not only this, the cross examination of the private

respondent, which was done on 01.08.2019, in the

case, reveals that the private respondent has admitted

that his father was working in Air Force then and in that

sentence only, he has stated that he and his father are

the earning members of the family. Although, at this

stage, when these lines are dictated, learned counsel for

the private respondent would submit that, in fact, it is

not the case of the private respondent that his father

was dependent on him. The private respondent also

submits that his father, mother, etc. also stay with him

in the family. But, he would submit that now his father

is retired. The Court leaves it at it.

10. The application for maintenance was

moved in the year 2015. The revisionists were also given

interim maintenance. What was the salary of the private

respondent in the Year 2015? There is no record. It

could have been easily placed on record. But, parties did

not opt to do so. In the court below, the private

respondent has admitted that his salary is Rs. 36,000/-.

The revisionists are his wife and two children. The court

fixed the amount of maintenance as Rs. 10,000/- to the

revisionist no.1, Smt. Aaisha, the wife of the private

respondent, and Rs. 2,500/- to each of the children, who

are revisionist nos. 2 & 3. The total amount of

maintenance is Rs. 15,000/- per month.

11. The amount of maintenance in all cases

may not be devised by any mathematical formulae.

Based on the income, living standard and other

attending circumstances, this amount is ascertained by

the courts. It has some subjectivity, definitely. But in

each case, the court tries to reach to is optimum level of

the correct income of the parties.

12. In view of the income of the private

respondent and other attending factors, this Court is of

the view that the order awarding maintenance does not

warrant any interference. Accordingly, both the revisions

deserve to be dismissed.

13. Both the revisions are dismissed.

(Ravindra Maithani, J.) 04.08.2022 Ravi Bisht