Harun Rashid vs Smt. Ujma Siddhique And Another
2022 Latest Caselaw 1822 UK

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


            Criminal Revision No. 387 of 2016



Harun Rashid                                         ...... Revisionist

                                  Vs.

Smt. Ujma Siddhique and Another                     ..... Respondents



Mr. Vipul Sharma, Advocate for the revisionist.
Mr. Bhuvnesh Joshi, Advocate for the respondents.



Hon'ble Ravindra Maithani, J. (Oral)

The present revisions is preferred against

the order dated 23.07.2016, passed in Criminal Case

No. 81 of 2013, Smt. Ujma Siddhique & Another Vs.

Harun Rashid, by the court of Family Judge, Nainital

("the case"). By the impugned judgment and order, an

application filed by respondent no.1 under Section 125

of the Code of Criminal Procedure, 1973 ("the Code")

seeking maintenance for herself and her daughter,

respondent no.2, has been allowed. The revisionist has

been directed to pay Rs. 15,000/- per month as

maintenance to his wife, the respondent no.1, and Rs.

5,000/- per month to his daughter, the respondent

no.2.

2. Facts of the case, briefly stated, are as

follows. The respondent No.1 filed an application

under Section 125 of the Code, seeking maintenance

for herself and her daughter from the revisionist. The

revisionist and the respondent no.1 were married on

23.07.2011. The respondent no.1 has already lost her

parents. After marriage, according to the application,

the respondent no.1 was harassed physically and

mentally for the demand of dowry. The revisionist was

working in Abu Dhabi, United Arab Emirates, as a

teacher. When the respondent no.1 gave birth to her

daughter, the respondent no.2, she was not taken care

of by any of her in-laws. She was ill-treated and

expelled from the matrimonial house. She was staying

in her parental house. But, again she joined the

company of her husband on 16.12.2012. The

revisionist returned to his job in Abu Dhabi. The

respondent no.1 was further harassed. She was

expelled from her matrimonial house on 23.03.2012.

She was beaten and abused before her expulsion.

Since then, she has been staying in her parental

house. According to the application, the revisionist has

been earning Rs.80,000/- per month, as his salary, as

a Physical Training Instructor in a school and he also

earns Rs.20,000/- from his property at Bareilly,

whereas, it is submitted that the respondent no. 1 is

not able to maintain herself.

3. The revisionist objected to the application

and denied all the allegations with regard to

harassment and dowry. According to the revisionist,

he wanted to take the respondent no. 1 along with him

to Abu Dhabi, but she was not ready for it. It is the

case of the revisionist that the respondent no.1 has

been staying away without any reasonable cause. In

his objections, the revisionist denied the allegation of

his income as averred by the respondent no.1.

According to him, somehow he could maintain his

mother and himself. According to the revisionist, the

respondent no.1 is able to maintain herself.

4. Both the parties adduced evidence in the

case. By the impugned judgment and order, the

application under Section 125 of the Code has been

allowed and the revisionist has been directed to pay

maintenance as stated hereinabove.

5. Heard learned counsel for the parties and

perused the record.

6. Learned counsel for the revisionist would

submit that the respondent no.1 has been staying

away without any reasonable cause; the respondent

no.1 has also filed an FIR under Section 498 A IPC, in

which after trial, the revisionist has already been

acquitted. The court did not find substance in the

averments made by the respondent no.1. The

averments of cruelty, as stated in the instant

application under Section 125 of the Code as well as in

the FIR lodged by the respondent no.1, under Section

498 A IPC were identical. Not only this, it is also

argued that, in fact, the respondent no.1 has also filed

an application under Section 12 of the Protection of

Women from Domestic Violence Act, 2005 ("the Act")

on the similar grounds. But, it has also been rejected.

Copies of both these decisions have been filed, which

reveals that such decisions were given in Criminal

Crime No. 498 A IPC and under the provisions of the

Act in sometime, in the year 2019.

7. Learned counsel for the revisionist also

raised the following points:-

(i) The revisionist also maintains his

mother, but this fact has not been

considered at all in the impugned

judgment and order, which makes it

bad in the eyes of law.

(ii) In order to entitle for maintenance, a

wife has to show that she has reasons

to stay away from her husband.

(iii) The proceedings under Section 498 A

IPC are like regular trial and

proceedings under Section 125 of the

Code are summary in nature.

(iv) The revisionist works in Abu Dhabi.

His income cannot be converted into

Indian Rupees. In Abu Dhabi, he lives

and spends in the currency, which

he earns there. Based on conversion of

the currency, the maintenance in the

proceedings under Section 125 of the

Code cannot be determined.

          (v)     The revisionist has stated that his

                  salary is   Rs. 50,000/-, but the court

                  below has wrongly     held that it is Rs.

                  60,000/- per month.

8. In support of his argument, learned counsel

for the revisionist has placed reliance in the principles

of law, as laid down in the cases of Ms. Bindu

Chaudhary Vs. Shri. Deepak Suga, 2016 SCC Online

Del 5423, Agriculture Produce Marketing Committee,

Bangalore Vs. State of Karnataka and Others, 2022

SCC Online SC 342, Smt. Pooja Gaur Vs. Umit @

Pinky Patel, CRR-1904 of 2015 and Deb Narayan

Halder Vs. Anushree Halder (2003) 11 SCC 303.

9. In the case of Bindu Chaudhary (supra), the

Hon'ble Delhi High Court held, "if a person is

working in Dubai, he earns in the currency of that

country and spends also in that currency. So it is

not open to the wife to just convert his income in

Indian currency and then seek enhancement."

10. In the case of Agricultural Produce

Marketing Committee, Bangalore (supra), the Hon'ble

Supreme Court, inter alia, observed, "the courts

should adjudicate on all the issues and give its

findings on all the issues and not to pronounce the

judgment only on one of the issues."

11. In the case of Smt. Pooja Gaur (supra), the

Hon'ble High Court of Madhya Pradesh, denied

maintenance under Section 125 of the Code to the wife

considering also the fact that on an application of the

wife, the husband has secured acquittal under

Section 498 A IPC.

12. In the case of Deb Narayan Halder (supra),

under the facts and circumstances, the Hon'ble Court

found that the husband did not treat his wife with

cruelty. The Hon'ble Supreme Court observed, "The

court is not permitted to conjecture and surmise.

It must base its findings on the evidence produced

before it by the parties. The enquiry by the court is

restricted to the evidence on record and the case

pleaded by the parties."

13. On the other hand, learned counsel for the

respondents would submit that the impugned

judgment and order is reasonable; the judgment and

order, under Section 498 A IPC is under appeal, in

which the revisionist has not been appearing. Learned

counsel for the respondents would submit that the

revisionist is getting about 3,000/- US Dollars as

salary in Abu Dhabi. He would submit that he has got

this information on the internet.

14. This is a revision. The scope is quite

restricted. This Court cannot, like a court of appeal,

appreciate the evidence in its entirety. To the extent of

examining correctness, legality and proprietary, the

matter has to be examined.

15. It is true that the proceedings under Section

125 of the Code is summary in nature, unlike a

criminal trial in which the prosecution has to prove its

case beyond reasonable doubt.

16. Reference has been made to the judgment in

the Criminal Case No. 405 of 2014, State Vs. Harun

Rashid and Others, passed by the court of Judicial

Magistrate, Nainital on 08.08.2019, ("498 A Case"). In

this case, the revisionist and others have been

acquitted of the charge under Sections 498 A, 323,

506 IPC and ¾ of Dowry Prohibition Act, 1961.

Reference has also been made to the judgment and

order dated 07.09.2019, passed in Misc. Case No.47 of

2014, Smt. Ujma Siddhique Vs. Harun Rashid and

Another, by the court of Judicial Magistrate/2nd

Additional Civil Judge (Junior Division), Nainital (Case

under the Act). By it, an application under Section 12

of the Act filed by the respondent no.1 has been

rejected. Admittedly, in both these judgments, there is

no reference to the proceedings under Section 125 of

the Code, which were decided by the impugned

judgment and order. Even otherwise, the standard of

proof in a criminal case is quite distinct. It is heavier

than what is required under Section 125 of the Code.

The judgments under Section 498 A IPC and under the

provision of the Act cannot have any effect like the

effect of declaration of a civil court. As stated, the

proceedings under Section 125 of the Code are

summary in nature.

17. In the case of Sethurathinam Pillai Vs.

Barbara alias Dolly Sethurathinam (1971) 3 SCC 923,

the Hon'ble Supreme Court, inter alia, observed, "It is

an order made in a proceeding under a provision

enacted with a view to provide a summary remedy

for providing maintenance, and for preventing

vagrancy."

18. In the case of Vimala Vs. Veeraswami,

(1991)2 SCC 375, the Hon'ble Supreme Court further

observed, "Section 125 of the Code of Criminal

Procedure is meant to achieve a social purpose.

The object is to prevent vagrancy and destitution.

It provides a speedy remedy for the supply food,

clothing and shelter to the deserted wife."

19. In the case of Dwarika Prasad Satpathy Vs.

Bidyut Prava Dixit and Another, (1999) 7 SCC 675, the

Hon'ble Supreme Court observed, "the standard of

proof of marriage in such proceedings is not as

strict as is required in a trial of offence under

Section 494 IPC. If the claimant in proceedings

under Section 125 of the Code succeeds in showing

that she and the respondent have lived together as

husband and wife, the court can presume that they

are legally wedded spouses, and in such a

situation, the party who denies the marital status

can rebut the presumption."

20. As stated, even otherwise, in 498 A case and

in the case under the Act, reference has not been

made to the proceedings under Section 125 of the

Code, which had been decided long before the 498 A

case and the case under the Act, were decided.

21. It is true that the revisionist has also stated

in his objections that with much difficulty, he could

maintain his mother and himself. This is what he has

stated in his affidavit even in his examination in chief.

It is also true that categorically, the court, in the

impugned judgment and order did not record as to

what amount the revisionist spends in maintaining his

mother.

22. But fact remains that in Para 15 of the

judgment while awarding maintenance, the court has

observed that such amount has been fixed keeping in

view the income and other circumstances of the

parties. Even otherwise, there are a few things, which

are to be noted. The court did not convert the foreign

currency in the Indian currency. In her application for

maintenance, the respondent no.1 claimed that the

salary of the respondent is Rs. 80,000/-. In his

objections, the revisionist did not disclose his income.

He did not write as to what is his salary. He simply

denied the averments made by the respondent no.1

and has stated that with much difficulty he could

maintain himself and his mother. In his affidavit filed

in his examination in chief also, the revisionist did not

disclose his income and reiterated his objections.

Although in Paragraph 11 of his affidavit, given in his

examination in chief, he tried to give some documents

reflecting as to what are his expenses.

23. The Court wanted to know from learned

counsel for the revisionist as to why the revisionist did

not file his salary certificate. This is so because the

revisionist had filed documents pertaining to his

expenditure there. To it, learned counsel for the

revisionist would submit that, at that time, the

judgment in the case of Rajnesh vs. Neha and Another

Manu/SC/0833/2020 had not come. Therefore, the

revisionist was under no obligation to reveal his

financial resources & liabilities as required by virtue of

directions given by the Hon'ble Supreme Court in the

case of Rajnesh (supra).

24. It is true that when the revisionist filed his

objections or his affidavit in his examination in chief,

directions in the case of Rajnesh (supra) were not in

existence. But, then, the revisionist did not disclose

his income on his own. He opted to reveal his

expenditure. He has not been categorical with the

amount he spends on his mother & where his mother

stays. He has stated in Para 10 of his affidavit filed in

his examination in chief that he had filed a suit for

restitution of conjugal rights in Bareilly. Who lives in

Bareilly? Is it a rented house or does the revisionist

own some house there? Who maintains it? The liability

was to be spelled out by the revisionist. It is true that

the respondent no.1 was to prove her case. She has

stated that the revisionist works in Abu Dhabi. She

has given tentative salary as per her, which she fixed

at Rs. 80,000/-. The revisionist rebutted it in his

cross-examination and told that he gets Rs. 50,000/-

as per Indian currency. It is the revisionist, who

converted the currency. The revisionist did not state as

to what is his salary in the currency where he is

working? What his standard of life is? How much he

spends on himself? Therefore, it cannot be said that

for these reasons, the impugned judgment and order is

bad.

25. For the want of certificates, any assessment

of income would be somehow guess work. The court

always tries to reach as near as possible to the exact

income of a person. Unfortunately, the courts do not

have any formulae by which the salary of a person

could be assessed, exactly.

26. In the instant case, the respondent no.1 has

stated that the salary of the revisionist is Rs. 80,000/-

in Abu Dhabi. The revisionist did not disclose his

income in his objection. The revisionist did not

disclose his income or his salary in Abu Dhabi in his

affidavit given in his examination in chief. He simply

denied the averments with regard to his salary. As

stated, the revisionist tried to persuade the Court that

he spends some amount on his own. He filed certain

documents as Annexure 4 to 7 of his affidavit filed in

his examination in chief. In his cross-examination, he

revealed that he receives Rs. 50,000/-, approximately,

as salary. The court fixed his salary as Rs. 60,000/-. It

cannot be faulted. The court has fixed the

maintenance keeping in view all the circumstances. As

stated. The court did not divulge in the minor details

as to how much money the revisionist is spending on

his mother. But the revisionist also did not divulge as

to how much he spends on his mother. The impugned

order reveals that the order of maintenance has been

passed based on the income and the circumstances in

which the parties are in.

27. In view of the foregoing discussion, this

Court is of the view that there appears to be nothing

wrong, illegal or improper in the impugned judgment.

Accordingly, there is no reason to make any

interference. Accordingly, the revision deserves to be

dismissed.

28. The revision is dismissed.

(Ravindra Maithani, J.) 24.06.2022 Ravi Bisht