Kishore Kumar vs State Of Uttarakhand And Another
2022 Latest Caselaw 2639 UK

                    IN HIGH COURT OF UTTARAKHAND
                              AT NAINITAL
                        Criminal Revision No.466 of 2022
Kishore Kumar                                                                 .....Revisionist
                                               Vs.

State of Uttarakhand and Another                                              .....Respondents

Advocate: Mr. Deepak Sharma, Advocate for the revisionist.
          Mr. Lalit Miglani, AGA with Mrs. Sonika Khulbey, Brief Holder for the State of
          Uttarakhand.

Hon'ble Sharad Kumar Sharma, J.

The instant criminal revision preferred by invoking the provisions contained under Section 397 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) to be read with Section 19(4) of Family Courts Act; has been preferred by the revisionist putting a challenge to an order passed by the Judge Family Court, Haridwar in Case No.204 of 2021 Smt. Deepika vs. Kishore, whereby while considering an application for the grant of interim maintenance under Sub Section (2) of Section 125 of Cr.P.C. the learned Family Court had determined the interim maintenance, which has been directed to be made payable at the rate of Rs.5,000/- per month. Apart from that, the direction has also been issued that the arrears thereof would be determined to be made payable from the date of institution of the application under Section 125 Cr.P.C. i.e. 04.08.2021.

2. Learned counsel for the revisionist has summarised his grounds for giving challenge to the impugned order dated 01.06.2022 on the following grounds:-

i. That the application for the grant of interim maintenance would not be tenable, in view of a specific statutory restrictions which had been imposed by Sub Section (4) of Section 125 Cr.P.C. wherein it provides, that the grant of maintenance or an interim maintenance, to an applicant would not be extended in case if, she is living in adultery or

has deserted the revisionist or the husband without any reason or refuses to live with her husband.

ii. Secondly, he submits that with regards to the set of allegations pertaining to the adultery, he has been consistently addressing his complaints to the competent authorities including, the one which he has referred to during the course of the argument, which is a correspondence made by him on 06.01.2020 to the office of Senior Superintendent of Police, Roshnabad District Haridwar, on which admittedly, according to the applicant no action has been taken.

iii. Thirdly, he submits that so far as the proceedings, which were held before the Mahila Help Line, on a complaint which was submitted by him on 08.04.2021, he has placed forward all the allegations and particularly a reference, which has been made, though vaguely in para 4 of the said complaint where a passing allegation has been made that she is having an affair and the fact of the respondent no.2, having an affair has been attributed to be in the knowledge of the family members. To what consequences this complaint of 08.04.2021 instituted before the Mahila Help Line reached to, is not a case or a fact which has been pleaded or argued.

3. Merely submission of a complaint by raising a set of allegation based upon once own perception, cannot be isolatedly taken as to be a foundation for the purposes of attracting the embargo created by Sub Section (4) of Section 125 of Cr.P.C. due to allegation of alleged adultery, because any cursory remark, which may amount to be a character assassination has had to be established by evidence on record.

4. There is nothing on record as such nor any attempt was made by the revisionist before the court below even, to substantiate his plea about the alleged allegation extra marital relationship, which respondent no.2 is said to have enjoyed with one person whose name was disclosed as 'Sameer'. Under the Family Court's Act and the Rules framed thereunder, where the Family Court

ventures into to decide a dispute arising out of a matrimonial discord and particularly when an allegation is made with regards to an illicit relationship or extra marital relationship, the Rules as framed under the Hindu Marriage Act, to be read with the provisions of the Family Court's Act, the alleged paramour has had to be made as a party to the proceedings before the factum of adultery could be ventured to be established because it cannot be established by any unilateral set of allegation levelled by the revisionist. Reverting back to the provisions contained under Sub Section (2) of Section 125 Cr.P.C. which was substituted by Act No.50 of 2021, it contained the provisions for such allowances for maintenance or interim maintenance and expenses depending upon the determination of the income accruing to the husband.

5. To deal with the aforesaid aspect the scrutinization of the impugned order dated 01.06.2022, as it was passed on the application Paper No.7-A, becomes relevant for its consideration. The learned Family Court while considering the application under Sub Section (2) of Section 125 Cr.P.C. during the pendency of the principle proceedings of Case No.204 of 2021 under Section 125 of Cr.P.C. has recorded a finding pertaining to the alleged theory, that the revisionist was working as a labourer and was having a very meagre income of Rs.4,000/- only as it was pleaded by him in his objection filed by way of Paper No.24-A.

6. Learned Family Court while dealing with the aforesaid contention as raised in para 4 of the objection Paper No.24-A had submitted that apart from the fact that there is no evidence brought on record by the revisionist, to establish his income accruing, the court has determined that even if for a moment the contention is accepted, that he was working as a labourer, it cannot be presumed that the revisionist in order to sustain himself in this inflated era would be able to survive by an income accruing of Rs.4,000/- per month. Hence, it was determined by the Family Court, as to be a nominal Rs.15,000/- which otherwise under the law is treated as to be a minimum wages, which would be accruing to a labour.

7. Reverting to the stand taken with regards to the so called the involvement of the respondents in an act of adultery, as this Court is of the view

that in view of the statutory implications for establishing a fact of adultery, the paramour is required to be examined before the court or he ought to have been made as a party before any inference could be draw about the establishment of adulterous relationship in the absence of the same the court has rightly observed that this aspect, could only be considered at the stage when the principle proceedings under Section 125 Cr.P.C, is decided on its own merits.

8. Hence, the inference drawn and as per the normal principles, which has been laid down to be adopted while considering the application for grant of interim maintenance the Hon'ble Apex Court has laid down that at least 1/3 of the income accruing, to the husband is to be taken as a basic foundation for determining the dependency and maintenance too, to be made payable to the applicant/wife. In that eventuality, the logic and the rational which has been adopted by the court by the impugned order of 01.06.2022, this Court is of the view that it is too pre-mature a stage to venture into the set of allegations of adultery, in the absence of there being any evidence led to the contrary merely an unproved assertion or an allegation raised in the correspondences made to the authorities, which has not led to any conclusive decision by the competent authorities, before whom the revisionist has complained, it cannot be deduced that there was adulterous relationship in order to attract the embargo of Sub Section (4) of Section 125 Cr.P.C.

9. In that eventuality, this Court is of the view that the impugned judgment does not call for any interference in the exercise of my revisional jurisdiction under Section 397 Cr.P.C. to be read with Section 19(4) of the Family Court's Act, which in itself is limited in its application where re- scrutinization of evidence is not an aspect, which would stand covered while exercising my revisionsl jurisdiction.

10. The revision lacks merits and the same is accordingly, dismissed.

(Sharad Kumar Sharma, J.) 25.08.2022 Arti