Uttarakhand High Court
Jai Prakash Sharma vs Smt. Ayushi And Others on 30 April, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 889 of 2023
Jai Prakash Sharma ...Revisionist
Versus
Smt. Ayushi and others ...Respondents
Present:-
Dr. Kartikey Hari Gupta, Advocate for the revisionist.
Ms. Manisha Rana Singh, A.G.A. for the State.
Mr. Pranav Singh, Advocate for the respondent nos. 1 and
2.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the exparte
judgment and order dated 29.08.2023, passed in Case No. 30
of 2020, Smt. Ayushi and another Vs. Sri Jai Prakash by the
court of Additional Family Judge, Roorkee, District Haridwar
("the case").
2. Heard learned counsel for the parties and perused
the record.
3. The respondent no.1 filed an application under
Section 125 of the Code of Criminal Procedure, 1973 ("the
Code") claiming maintenance from the revisionist. It has been
the case of the respondent no.1 that she and the revisionist
were married on 06.12.2014. They were blessed with a baby
girl, the respondent no.2. But after marriage, the revisionist
and his family members were not happy with the dowry given
and they started demanding a Swift Desire car and Rs.3 Lakh
in cash, due to which the respondent no.1 was harassed. She
was beaten up also. On 01.06.2015, the respondent no.1 was
expelled from her matrimonial house by the revisionist. There
only she had delivered a baby girl. According to the
respondent no.1, she is not able to maintain herself, whereas
the revisionist works in Merchant Navy and earns
Rs.1,80,000/- per month salary. Claim for Rs.50,000/- per
month maintenance was made by the respondent no.1.
4. In the case, the revisionist was served with the
notice. He appeared. On 09.01.2023, the date was adjourned
in the case on the adjournment application filed by the
revisionist. The next date fixed was 15.02.2023. On that also
the revisionist filed an adjournment application and the next
date fixed was 14.03.2023. On 14.03.2023, the revisionist did
not appear and the case proceeded exparte against him. On
the next date i.e. on 11.04.2023, the respondent no.1 filed her
exparte evidence and subsequently impugned order has been
passed.
5. Learned counsel for the revisionist would submit
that the exparte proceeding order is not good in the eye of law.
He would refer to the margin of order sheet dated 15.02.2023,
wherein, it is recorded that the respondent is not present
proceed exparte. It is argued that this endorsement is made by
the respondent no.1 herself. Therefore, based on such
endorsement, exparte proceeding could not have been
initiated.
6. Learned counsel has raised the following points:-
(i) The respondent no.1 has concealed the fact
that in another application under the
Protection of Women From Domestic Violence
Act, 2005 ("the Act") in the year 2021, the
respondent no.1 and 2 were awarded
Rs.8,000/- per month maintenance. But, it is
argued that this factum was concealed by the
respondent no.1 in her application under
Section 125 of the Code.
(ii) The income of the revisionist has not been
proved by any documentary evidence and the
assessment of income is mere guess work.
7. Learned counsel for the respondent nos. 1 and 2
would submit that notice was properly served on the
revisionist. He did not chose to appear. He did not file any
objection.
8. The copy of order sheets has been filed as Annexure
2 in this revision. It categorically records that on 09.01.2023,
the case was adjourned on an application of the revisionist.
Thereafter, on 15.02.2023, the case was also adjourned on an
application of the revisionist and the next date fixed was
14.03.2023. The order sheet of date fixed 14.03.2023 is quite
explicit and records that the revisionist did not appear on that
date and the case proceeded exparte against him.
9. Who made the endorsement below the order sheet
dated 15.02.2023 may not be speculated by the Court. The
fact remains that on the date of hearing i.e. 14.03.2023, the
revisionist did not appear and the case proceeded exparte
against him. Thereafter, evidence was given. It is not only one
date when the revisionist was not absent. After 14.03.2023,
next date fixed was 11.04.2023, thereafter, the date fixed in
the matter was 20.05.2023, 14.06.2023 and 17.07.2023. On
18.08.2023, the arguments were heard in the case and
thereafter, judgment was delivered. The exparte proceeding
order is quite valid in the instant case.
10. In the maintenance case, the best evidence in
relation to the salaried person is the salary certificate. It
appears that it has not been filed by the respondent no.1 in
the case. But the fact remains that in her application under
Section 125 of the Code, in para 14, the respondent no.1 has
stated that the revisionist works in Merchant Navy and gets
Rs.1,80,000/- per month salary. In fact, the respondent no.1
has claimed Rs.50,000/- per month maintenance i.e.
Rs.25,000/- per month for herself and Rs.25,000/- per month
for her daughter.
11. The revisionist was aware of the allegations made
by the respondent no.1 in her application under Section 125
of the Code. He did not choose to rebut it. It has been deposed
on oath by the respondent no.1 in her exparte evidence. The
evidence of the respondent no.1 remains uncontroverted. As
stated, it is not on the back of the revisionist. He was told well
in advance by the respondent no.1 that she claims his income
as Rs.1,80,000/- per month as working in the Merchant Navy.
This was so done by making those averments in para 14 of
her application under Section 125 of the Code. The Court did
not believe Rs.1,80,000/- per month income of the revisionist.
In internal page 4, first paragraph in the impugned order, the
court had recorded that the revisionist earns Rs.50,000/- per
month conveniently. It is argued that it is a kind of guess
work. In cases when salary certificates are not filed in
maintenance cases, the court tries to reach nearest to correct
income of the person. There involves some estimation. It may
not be termed as guess work. But, the estimation of income is
made based on attending circumstances. That is what is done
in the instant case.
12. The respondent nos.1 and 2 has claimed Rs.
50,000/- per month maintenance. The court below did not
grant Rs.50,000/- per month maintenance. As stated, the
court also did not conclude that the income of the revisionist
is Rs.1,80,000/- per month. Instead, it was assessed as
Rs.50,000/- per month. Merely, Rs.16,000/- per month
maintenance was granted to the respondent nos. 1 and 2.
There is no error in the impugned order.
13. It is argued that the respondent no.1 did conceal
that she gets Rs. 8,000/- per month maintenance under the
provisions of the Act. Reference has been made to an order
dated 30.09.2021, passed in Misc. Case No. 173 of 2019, Smt.
Ayushi Vs. Jai Prakash Sharma and others, by the court of
Additional Chief Judicial Magistrate, Roorkee, District
Haridwar. By it an application filed by the respondent no.1
under Section 23 of the Act has been allowed and she
alongwith her daughter has been awarded Rs. 8,000/- per
month maintenance. This order under Section 23 of the Act is
an interim order. What is the final order? There is no record to
it. Even if there is some order of payment of maintenance in
favour of the respondent nos. 1 and 2 which allegedly the
respondent nos. 1 and 2 have concealed, the revisionist still
has a remedy to move an application for modification of the
order of maintenance passed by virtue of the impugned
judgment and order.
14. Having considered the facts and circumstances of
the case, this Court is of the view that there is no reason to
make any interference. Accordingly, the revision deserves to
the dismissed.
15. The revision is dismissed.
(Ravindra Maithani, J.)
30.04.2024
Jitendra
