Madan Mohan Mamgain vs State Of Uttarakhand And Another
2023 Latest Caselaw 425 UK

 HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Revision No.653 of 2022

Madan Mohan Mamgain                            ...Revisionist

                           Versus

State of Uttarakhand and another             ...Respondents

Present:-
            Mr. Devang Dobhal, Advocate for the revisionist.
            Mr. B.P.S. Mer, Brief Holder for the State.
            Mr. Vikas Bahuguna, Advocate for the respondent
            no.2.

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

order 13.07.2022, passed in Criminal Case No. 569 of

2019, Smt. Swati Mamgain Vs. Madan Mohan Mamgain,

by the court of Additional Judge, Family Court, Dehradun.

By it, the revisionist has been directed to pay Rs.2,000/-

per month to his wife as interim maintenance.

2. Heard learned counsel for the parties and

perused the record.

3. The record reveals that the respondent no.2 filed

an application under Section 125 of the Code of Criminal

Procedure, 1973 seeking maintenance from the revisionist

on the ground that after marriage on 05.10.2016, the

revisionist respondent no.2 was harassed in her in-law's

house, which compelled her to stay in her parental house.

It has been further case of the respondent no.2 that the

revisionist is not maintaining her. In the proceedings, the

respondent no.2 has also filed an application seeking

interim maintenance.

4. The revisionist filed objections and denied all the

allegations as made by the respondent no.2. It has been

the case of the revisionist that he earns Rs. 3,000/- by

selling vegetables.

5. Learned counsel for the revisionist would submit

that the court below granted Rs.2,000/- per month

maintenance to the respondent no.2, which is not in

accordance with law. It is submitted that income of the

revisionist is Rs.3,000/- per month, whereas, the

respondent no.2 works in a private establishment and

earns Rs.15,000/- per month salary, as admitted by her in

her affidavit given in view of the judgment in the case of

Rajnesh Vs. Neha and Another, (2021) 2 SCC 324. Therefore,

it is argued that the order granting interim maintenance is

bad in the eyes of law.

6. On the other hand, learned counsel for the

respondent no.2 would submit that the court below did not

record the finding that the revisionist earns Rs.3000/- or

Rs.4000/- per month salary. It is submitted that this was

the argument made by the revisionist, which has been

noted in the impugned order. It is argued that the

revisionist is a very big businessman. He has many shops.

He runs a shop.

7. It is true that the impugned order does not

tentatively record as to what is the income of the

revisionist. The respondent no.2 in para 20 of her

application seeking maintenance has stated that she is

unemployed and she was removed from the service in the

year 2018 when she was working earlier. This fact has, in

fact, been controverted by the respondent no.2, in view of

her affidavit given in compliance of judgment, in the case

of Rajnesh (supra), wherein she has categorically stated

that she earns Rs.15,000/- by working in some

establishment on contractual basis. This affidavit has been

filed in the year 2021

8. As stated, the impugned order does not record

as to what is the tentative monthly income of the

revisionist. The court below has taken note of the fact that,

in fact, no salary, as such was deposited in the account of

respondent no.2 after 2020. In her affidavit, the

respondent no.2 had already admitted that she has been

earning Rs.15,000/- per month. Therefore, this finding at

this stage, appears to be against the weight of evidence.

9. Even if, the respondent no.2 earns Rs.15,000/-

per month, she could get maintenance if the revisionist is

earning much higher than her income so as to permit her

to live a life as per the status of the revisionist. As stated,

there is not finding with regard to the income of the

revisionist.

10. In view of the above, this Court is of the view

that impugned order deserves to be set aside with the

request to the court below to decide the interim

maintenance application, in view of the observation, as

made in the judgment made.

11. The revision is allowed.

12. The impugned order is set aside.

13. The court below is requested to consider afresh

the interim maintenance application in view of the

observations as made hereinabove.

(Ravindra Maithani, J.) 20.02.2023 Jitendra