Sushil Gaur vs State Of Uttarakhand And Another
2022 Latest Caselaw 3727 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Revision No. 605 of 2022

Sushil Gaur                                    ........Revisionist

                              Versus

State of Uttarakhand and another              ........Respondents


Present:-
            Mr. Shivanand Bhatt, Advocate for the revisionist.
            Mr. Atul Kumar Shah, Deputy Advocate General with Ms.
            Mamta Bisht, Brief Holder for the State.



Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

judgment and order dated 14.07.2022, passed in Criminal

Case No. 122 of 2017, Asha Gaur vs. Sushil Gaur, by the

court of Judge, Family Court Kotdwar, District Pauri Garhwal

(for short, "the case"). By it, an application filed under Section

125 of the Code of Criminal Procedure, 1973 (for short, "the

Code") by the respondent no.2 ("the wife") has been allowed

and the revisionist has been directed to pay `4,000/- per

month to his wife and `3,000/- per month each to both of the

daughters, as maintenance.

2. Heard learned counsel for the parties and

perused the record.

3. The record reveals that the revisionist and the

respondent no.2 were married on 24.10.2012. The

respondent no.2 moved an application under Section 125 of

the Code that soon after marriage, she was harassed,

tortured and beaten up in her in-laws' house. She gave birth

to two children, but due to the atrocities committed on her,

she had no option, but to stay separate; she has no means to

survive whereas, the revisionist is a persons of means, who

earns `15,000/- per month; he is a lawyer.

4. This application under Section 125 of the Code has

been objected to by the revisionist on the ground that the

respondent no.2 has never been harassed, tortured and

taunted in her in-laws' house. The revisionist has denied all

the allegations. According to him, the respondent no.2 could

not adjust with the revisionist because she had much

aspirations in her life. With regard to the income, it is the

case of the revisionist that he hardly earns `5,000/- per

month as a Junior Lawyer whereas, the respondent no.2

earns about `27,000/- per month from tuition, Yoga

teaching, etc. Parties adduced evidences in the case. By the

impugned judgment and order, the application filed by the

respondent no.2 has been allowed and the revisionist has

been directed to pay total `10,000/- per month as

maintenance (`4,000/- per month to the wife and `3,000/-

per month each to the two daughters).

5. Learned counsel for the revisionist would submit

that the respondent no.2 is not entitled to maintenance; she

had high aspirations in her life; she was not adjusting in her

matrimonial life. In addition to it, it has also been argued that

the amount of maintenance is in excessive because the

revisionist is a Junior Lawyer, he does not earn more than

`5,000/- in a month.

6. The impugned judgment and order reveals much.

It reveals that, in fact, it was the revisionist, who had filed a

suit for divorce, which was ex parte decreed. But, today a

statement is given by the learned counsel for the revisionist

that on an application filed by the respondent no.2, the ex

parte order is set aside and that order is under challenge in

this High Court.

7. The impugned judgment and order also reveals

that, in fact, the revisionist married another woman, with

whom also, he had some disputes. With the second wife and

daughter, he settled the dispute by paying `3,30,000/-.

Learned counsel for the revisionist would submit that when

the suit for divorce was decreed ex parte and attained finality,

at that stage, the revisionist performed second marriage,

which also did not work.

8. This is a revision. The scope is quite limited to the

extent of examining legality, propriety and correctness of the

impugned judgment and order. Appreciation of evidence is

beyond the scope of revision unless the finding is perverse i.e.

without any weight of evidence.

9. The impugned judgment and order of the court

below has widely considered the statements of the parties as

well as the documents. The record also reveals that, in fact,

the revisionist has levelled allegations of extra-marital

relations on his wife. Has it been able to be substantiated?

When this question is posed to the learned counsel for the

revisionist, he would submit that some photographs were

filed in the divorce suit, which is still pending. It is submitted

that the photographs were also filed in the case.

10. In para 15 of the impugned judgment and order,

the court below has observed that the photographs, as filed

has not been proved by the revisionist. Having considered the

evidence adduced, the court below observed that the wife had

sufficient reasons to stay separate. This finding does not

warrant any interference. It is based on evidence, which is in

accordance with law.

11. In so far as the income is concerned, the court

below has taken note of the fact that the revisionist did pay

`3,30,000/- to his second wife and daughter as one-time

settlement. It is admitted in the case that the revisionist has

been working as an Advocate since 2009-10. In cases where

there are no documents with regard to the income, it is really

much hard to the court to assess actual income of a person.

In the instant case, based on all the attending circumstances,

the court has drawn on a conclusion, which cannot be said to

be perverse or not in accordance with law. For three persons

(wife and two children) total 10,000/- maintenance has been

awarded. By no state of imagination can it be said to be

excessive.

12. In view of the foregoing paragraphs, this Court is of

the view that the court below has not committed any error,

illegality or propriety by passing the impugned order. There is

no reason which may warrant any interference in the

impugned order. Therefore, the revision deserves to be

dismissed.

13. The revision is dismissed.

(Ravindra Maithani, J.) 22.11.2022 Sanjay