Satya Prakash Naithani vs State Of Uttarakhand And Others
2022 Latest Caselaw 3641 UK

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

             Criminal Revision No. 286 of 2022

Satya Prakash Naithani                              ....Revisionist

                                   Vs.

State of Uttarakhand and Others                  ..... Respondents


Presents:-
Mr. Neeraj Garg, Advocate for the revisionist.
Mr. Pankaj Joshi, Brief Holder for the State.

                             JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to

the impugned judgment and order dated 12.05.2022,

passed in Case No. 107 of 2020, Smt. Poonam Naithani

and Another Vs. Satya Prakash Naithani, by the court of

Principal Judge, Family Court, Dehradun, District

Dehradun ("the case"). By it, an application for interim

maintenance filed by the private respondents have been

allowed and the revisionist has been directed to pay Rs.

15,000/- to each of the private respondents per month

as interim maintenance.

2. Heard learned counsel for the revisionist

and perused the record.

3. The record reveals that the respondent

no.2, Smt. Poonam Naithani, who is the wife of the

revisionist and Smt. Anshika Naithani, the respondent

no.3, who is the daughter of the revisionist, filed an

application seeking maintenance from the revisionist

under Section 125 of the Code of Criminal Procedure,

1973 ("the Code"). The respondent no.2 and the

revisionist were married on 25.09.1998. The respondent

no.3 is their daughter. The relationship between the

revisionist and the respondent no.2 deteriorated. It has

been the case of the respondent no.2 that, in fact, the

revisionist had married a woman named Shivani Rawat

sometimes in the year 2005 and he has been staying

with her. He pleaded for divorce. There were multiple

litigations between the parties. It has been the case of

the respondent no.2, the wife, that she is not able to

maintain herself. Her daughter is dependent on her,

whereas, the revisionist is a Draftsman. He is B Tech.

(Architecture). He earns Rs. 3 Lacs per month.

4. Based on this application, the proceedings

of the case were instituted. In this case, an application

for interim maintenance was filed by the respondent

nos.2 and 3. It has been objected to by the revisionist on

multiple grounds.

5. It is the case of the revisionist that since

both the revisionist and the respondent no.2 are not

compatible and it had become little impossible for them

to carry together, they decided to get divorce.

Accordingly, a suit for mutual divorce was filed, which

was subsequently withdrawn by the respondent no.2,

the wife. The revisionist, in his objections, did not

disclose his income. In Para 34 of the objections to

interim maintenance application, he writes that he is

physically challenged. He earns somehow for his

livelihood, whereas, the respondent no.2 earns about Rs.

10,000-15,000/- per month by tuition.

6. After hearing the parties, by the impugned

order, the revisionist has been directed to pay Rs.

15,000/- to each of the private respondents per month

as interim maintenance. Aggrieved by it, the instant

revision.

7. Learned counsel for the revisionist would

submit that a major daughter is not entitled to

maintenance under Section 125 of the Code. Even under

Section 20 of the Hindu Adoptions and Maintenance Act,

1956 ("the Adoption Act"), a married daughter may not

be entitled to maintenance unless it is shown that she is

not able to maintain herself. Learned counsel for the

revisionist also placed reliance on the principle of law as

laid down in the case of Abhilasha Vs. Prakash and

Others, 2020 SCC OnLine SC 736, to argue that in order

to get maintenance, a major daughter has to plead and

prove the facts. It is argued that the respondent no.3,

the daughter of the parties, has not pleaded that she is

not able to maintain herself. The facts have not been

proved. It is not one of such cases, in which the

respondent no.3 could have got interim maintenance

even.

8. Learned counsel for the revisionist also

raised the following points in his submission:-

(i) The respondent no.2 is staying separate

by mutual consent. Therefore, she is

not entitled to maintenance.

(ii) In the impugned order, the income of

the revisionist has not been assessed,

which makes this order bad in the eyes

of law.

(iii) Points for determination have not been

formulated in the impugned order.

(iv) The respondent no.3, the daughter, has

not filed an affidavit, as required in

view of the judgment in the case of

Rajnesh Vs. Neha and Another (2021) 2

SCC 324.

9. It is true that under Section 125 of the

Code, a major child is not entitled to maintenance,

unless such child is, by reason of any physical or mental

abnormality or injury, unable to maintain himself. It is

also true that the case is based on an application under

Section 125 of the Code, but this argument has less

merit for acceptance in view of the judgment in the case

of Abhilasha (supra).

10. In the case of Abhilasha (supra), the

Hon'ble Supreme Court, inter alia, observed that if a

family court has jurisdiction to decide a case under

Section 125 of the Code as well as Section 20 of the

Adoption Act, a major daughter may also be granted

maintenance so as to avoid multiplicity of proceedings.

In Para 9, the Hon'ble Supreme Court posed the

question for consideration as:-

9. The question to be answered in the present case

is as to whether a Hindu unmarried daughter is

entitled to claim maintenance from her father under

Section 125 Cr.P.C. only till she attains majority or

she can claim maintenance till she remains

unmarried. Section 125(1) Cr.P.C., which is relevant

for the present case is as follows:--

"125. Order for maintenance of wives,

children and parents.--

(1) If any person having sufficient means

neglects or refuses to maintain-

(a) his wife, unable to maintain

herself, or

(b) his legitimate or illegitimate

minor child, whether married

or not, unable to maintain

itself, or

(c) his legitimate or illegitimate

child (not being a married

daughter) who has attained

majority, where such child is,

by reason of any physical or

mental abnormality or injury

unable to maintain itself, or

(d) his father or mother, unable to

maintain himself or herself,

XXXXXXXXXXXXXXXXXXXXX"

11. In Paras 32 and 33, the Hon'ble Supreme

Court considered as hereunder:-

"32. After enactment of Family Courts Act, 1984, a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Courts, proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. In an area where

the Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court."

"33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order."

12. It is true that in order to get maintenance,

the Hon'ble Supreme Court has further observed that

the entitlement to such maintenance has to be pleaded

and proved. There cannot be any dispute on that

proposition. It cannot be said that the application, which

has been filed, has to be allowed. The court has to

assess the entitlement of the claimant for receiving

maintenance.

13. It is also true that in the impugned order,

there has been less discussion on the monthly income of

the revisionist. The Court wanted to know from learned

counsel for the revisionist as to what was the per month

income disclosed by the revisionist in his affidavit filed

pursuant to the judgment in the case of Rajnesh

(supra)? Learned counsel for the revisionist would

submit that the income, as such, has not been

disclosed, instead, it has been written by the revisionist

that he is a disabled and his left hand is not working

since long.

14. The Court refrains to make deeper scrutiny

at this stage. Suffice to say that the revisionist did not

disclose his income. In his objections filed to the interim

maintenance application, in Para 34, he writes that he

earns his livelihood by taking work from some persons.

The question is how much he earns each month? As

stated, it is not disclosed. The respondent no.2 has

categorically stated that the revisionist earns about Rs. 3

Lacs per month. He is B-Tech (Architecture). Therefore,

merely because the assessment of income has not been

done, the impugned order cannot be termed as wrong,

illegal or improper.

15. It has been argued that the revisionist and

the respondent no.2 are staying separate by mutual

consent, but learned counsel for the revisionist could not

indicate anything on record, which could establish it. It

is a fact that a suit for divorce, based on mutual

consent, was filed, but fact also remains that it was

subsequently withdrawn by the respondent no.2. Filing

of a suit for divorce by mutual consent is one thing and

staying separate by mutual consent is quite distinct.

Under certain circumstances, parties living under one

roof may file a suit for divorce based on mutual consent.

But, at the same time, there may be situations where

parties are not in litigation but staying separate by

mutual consent. Therefore, merely because a suit for

divorce, based on mutual consent, was filed, it cannot be

said that the parties are living separate by mutual

consent. This argument also has less merit for

acceptance.

16. It is argued that the respondent no.3, the

daughter, has not pleaded and proved that she is not

able to maintain herself. The impugned order has been

passed at the stage of interim maintenance. The

application under Section 125 of the Code has been filed

jointly by the respondent nos. 2 & 3. The things have

been averred, if not pleaded. So far as the proof is

concerned, it is a stage, which has yet to come. The

application categorically writes that the respondent no.2,

the wife, is not able to maintain herself. It also writes

that the respondent no.3, the daughter, is dependent on

the respondent no.2. It impliedly, but loudly avers that

the respondent no.3 is not able to maintain herself.

Merely because categorically there is no such averment,

it cannot be said that the respondent no.3 has not

averred that she is not able to maintain herself.

17. It is also argued that points of

determination have not been made. This is not such an

objection, which may term the order illegal. The court

has recorded a finding on every aspect. It has been the

allegation of the respondent no.2, the wife of the

revisionist, that the revisionist had married another

woman. The impugned order, in Para 7, makes reference

to a document, which was obtained under Right to

Information Act, 2005, which reveals that the revisionist

had married a woman named Shivani Rawat. In his

affidavit filed with regard to assets and liabilities, the

revisionist has admitted that he is staying in the house

of a Shivani Rawat. Does it support the contention of the

respondent no.2, the wife of the revisionist that the

revisionist had married Shivani Rawat? These all issues

would find determination after final determination of the

case.

18. Having considered the entirety of facts, this

Court is of the view that the impugned order is in

accordance with law. This Court does not find any

illegality, error or impropriety in the impugned order.

This Court does not find any reason to make any

interference. Accordingly, the revision deserves to be

dismissed at the stage of admission itself.

19. The revision is dismissed in limine.

(Ravindra Maithani, J.) 16.11.2022 Ravi Bisht