# Abhijeet @ Rahul Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 684
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** Criminal Revision No. 4105 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhijeet-rahul-revisionist-v-state-of-u-p-anr-49389
- **Pages:** 11

## Headnote

(A) Criminal Law - Revision - The Code of
Criminal Procedure, 1973 - Section 125 -
Order for maintenance of wives, children
and parents - wife, child and parents
should not be left in a helpless state of
distress, destitution and starvation, Indian
Penal Code, 1860 - Sections 498-A, 370,
323, 504, The Dowry prohibition Act, 1961
- Section 3/4 , Domestic Violence Act,
2005 - Sections 18, 19, 20 - Obligation of
the husband is on higher pedestal when
the question of wife and children arises -
A wife is entitled to live a life similar to
her husband's, with the husband's status
and stata being a prominent factor - As
long as the wife is granted adequate
maintenance within section 125 Cr.P.C.,
she can live with dignity as she would
have lived in her matrimonial home -
Merely because the applicant-wife is
capable of earning - not sufficient reason
to reduce the maintenance awarded - not
be a ground to reject her claim for
maintenance.
(Para -12, 16, 21, 22)

FIR against her husband, parents-in-law, and
sister-in-law - dowry demand, matrimonial
cruelty, ill treatment, physical assault, and
unnatural intercourse - Revisionist-husband
ordered to pay Rs.4,000/- as monthly
maintenance to opposite party No.2(wife of
revisionist) - from application filing date to
judgment date - and thereafter Rs.8,000/- per
month - Arrears of maintenance to be paid in
four monthly installments - Any earlier sum
received by applicant will be adjusted towards
maintenance awarded in judgment - matter
was referred to Mediation Center - arrest of
accused persons was stayed until the next
listing date - interim order was vacated. (Para -
1, 6)

HELD:-Amount awarded under Section 125
Cr.P.C. may be reduced to some extent to
balance the equities of both parties, as there is
no certainty of the husband's fixed income but
his ability to earn. Criminal Revision No.2373 of
2023, filed against the ex-parte judgement and
order dismissed and impugned orders affirmed.
Criminal Revision No.4105 of 2022 partially
allows, and the impugned order is modified to
maintain the Rs.4000/- monthly maintenance
award from application to judgement, but
reduce it to Rs.6,000/- per month, subject to
other conditions.(Para - 23, 24, 25)

Criminal Revision partly allowed. (E-7)

LIST OF CASES CITED:-

## Text

684 INDIAN LAW REPORTS ALLAHABAD SERIES
zealous to see that a juvenile derives full
benefits of the provisions of the Act but at
the same time it is also imperative for the
Courts to ensure that the protection and
privileges under the Act are not misused
by unscrupulous
persons
to
escape
punishment for having committed serious
offences."

32.13. In para 36 of parag Bharti
(2016) 12 SSC 744 it was observed:

'36. It is settled position of law
that if the matriculation or equivalent
certificates are available and there is no
other material to prove the correctness of
date of birth, the date of birth mentioned in
the matriculation certificate has to be
treated as a conclusive proof of the date of
birth of the accused. However, if there is
any doubt or a contradictory stand is being
taken by the accused which raises a doubt
on the correctness of the date of birth then
as laid down by this Court in Abuzar
Hossain vs. State of W.B., (2012) 10 SCC
489, an enquiry for determination of the
age of the accused is permissible which has
been done in the present case.'

18. Now I return back to case in hand,
the Juvenile Justice Board vide order dated
01.06.2022 after considering the markssheet of U.P. Examination Board Year
2019 of the revisionist and Transfer
Certificate of earlier school and statement
of CW-2 and CW-3, who have proved the
educational admission certificate, wherein
the date of birth of the juvenile is
25.12.2002 and the Juvenile Justice Board
declared that on the date and time of
incident the juvenile was 16 years, 11
months and 24 days old .

19. T aking into account the totality of
facts and keeping in mind, the ratio of the
Apex Court's judgment in the case of
Rishipal Singh Solanki vs. State of Uttar
Pradesh And Others (2022) 8 SCC 602,
and the reasons recorded and discussed
above, I am of the considered view that the
appellate court recorded perverse finding
into the enquiry for determination of age of
the revisionist and is against the facts,
evidence and law and the impugned order
dated 25.07.2022 is liable to be set aside
and the order date 01.06.2022 passed by the
Juvenile Justice Board is liable to be
affirmed. Hence the present criminal
revision is liable to be allowed.

20. In view of the above, the present
criminal revision is allowed and the order
dated 25.07.2022 passed by Sessions
Judge, Etah is set aside and the order dated
01.06.2022 passed by Juvenile Justice
Board, Etah is affirmed.

21. The office is directed to send back
the original record to the court concerned
with certificate copy of the judgement
immediately.

----------
(2023) 11 ILRA 684
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 4105 of 2022
With
Criminal Revision 2373 of 2023

Abhijeet @ Rahul ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel
for
the
Revisionist:
11 All. Abhijeet @ Rahul Vs. State of U.P. & Anr.
685
Sri Sundeep Shukla

Counsel for the Respondents:
G.A., Sri Sunil Kumar Dwivedi

(A) Criminal Law - Revision - The Code of
Criminal Procedure, 1973 - Section 125 -
Order for maintenance of wives, children
and parents - wife, child and parents
should not be left in a helpless state of
distress, destitution and starvation, Indian
Penal Code, 1860 - Sections 498-A, 370,
323, 504, The Dowry prohibition Act, 1961
- Section 3/4 , Domestic Violence Act,
2005 - Sections 18, 19, 20 - Obligation of
the husband is on higher pedestal when
the question of wife and children arises -
A wife is entitled to live a life similar to
her husband's, with the husband's status
and stata being a prominent factor - As
long as the wife is granted adequate
maintenance within section 125 Cr.P.C.,
she can live with dignity as she would
have lived in her matrimonial home -
Merely because the applicant-wife is
capable of earning - not sufficient reason
to reduce the maintenance awarded - not
be a ground to reject her claim for
maintenance.
(Para -12, 16, 21, 22)

FIR against her husband, parents-in-law, and
sister-in-law - dowry demand, matrimonial
cruelty, ill treatment, physical assault, and
unnatural intercourse - Revisionist-husband
ordered to pay Rs.4,000/- as monthly
maintenance to opposite party No.2(wife of
revisionist) - from application filing date to
judgment date - and thereafter Rs.8,000/- per
month - Arrears of maintenance to be paid in
four monthly installments - Any earlier sum
received by applicant will be adjusted towards
maintenance awarded in judgment - matter
was referred to Mediation Center - arrest of
accused persons was stayed until the next
listing date - interim order was vacated. (Para -
1, 6)

HELD:-Amount awarded under Section 125
Cr.P.C. may be reduced to some extent to
balance the equities of both parties, as there is
no certainty of the husband's fixed income but
his ability to earn. Criminal Revision No.2373 of
2023, filed against the ex-parte judgement and
order dismissed and impugned orders affirmed.
Criminal Revision No.4105 of 2022 partially
allows, and the impugned order is modified to
maintain the Rs.4000/- monthly maintenance
award from application to judgement, but
reduce it to Rs.6,000/- per month, subject to
other conditions.(Para - 23, 24, 25)

Criminal Revision partly allowed. (E-7)

LIST OF CASES CITED:-

1. Kirtikant D. Vadodaria Vs St. Of Guj. & anr. ,
(1996) 4 SCC 489

2. K.Vimal Vs K.Veeraswamy , (1991) 2 SCC 375

3. Chander Parkash Bodh Raj Vs Shila Rani
Chander Prakash, AIR 1968 Delhi 174

4. Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316

5. Durga Singh Lodhi Vs Prembai & ors., 1990
Cr.L.J. 2065

6. Shamima Farooqui Vs Shahid Khan, AIR 2015
SC 2025

7. Shailja VsKhobbanna, AIR 2017 SC 1174

8. Sunita Kachwaha & ors. Vs Anil Kuchwaha,
(Hon'ble Apex Court) Criminal Appeal No.2310
of 2014

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Criminal Revision No.4105 of
2022 (Abhijit Alias Rahul vs. State of U.P.
and Another) is directed against the
judgment and order dated 12.9.2022,
passed by Additional Principal Judge,
Family Court, Court No.2, Bulandshahr in
Maintenance Case No.930 of 2015 (Smt.
Poonam Sharma vs. Abhijit Alias Rahul),
under Section 125 Cr.P.C., Police Station
Kotwali Nagar, Bulandshahr, whereby the
revisionist-husband has been directed to
686 INDIAN LAW REPORTS ALLAHABAD SERIES
pay Rs.4,000/- as monthly maintenance to
opposite party No.2, who is wife of the
revisionist from the date of filing of
application to date of judgment and
thereafter Rs.8,000/- per month. The
arrears of maintenance at the rate of
Rs.4,000/- per month has been directed to
be paid in four monthly installments. This
is also directed that any sum received by
the applicant earlier will be liable to be
adjusted towards maintenance awarded in
the judgment.

2. Criminal Revision No.2373 of
2023 is directed against the ex-parte
judgement and order dated 8.1.2019 passed
by Additional Chief Judicial Magistrate,
Bulandshahr in Case No.1503 of 2015
(Smt. Poonam vs. Abhijit @ Rahul and
others), under Sections 18, 19 and 20 of
Domestic Violence Act, Police Station
Kotwali Nagar, Bulandshahr, whereby the
respondents who are husband and in-laws
of Smt. Poonam Sharma were directed to
provide a room in shared household of the
respondents and they are also directed to
refrain from causing any physical or mental
pain to the applicant. The respondent No.1
has been directed to pay Rs.2500/- per
month from the date of order towards
meeting out the basic needs of the applicant
related to food, clothing, medical and other
expenses. The impugned order passed by
learned Magistrate in proceeding under
Domestic Violence Act was challenged by
the opposite parties in Criminal Appeal
No.11 of 2019, (Abhijit @ Rahul and
others vs. Smt. Poonam Sharma and
another), which was dismissed by learned
Sessions Judge, Bulandshahr vide judgment
and order dated 6.7.2019 and the ex-parte
judgment passed by the learned Magistrate
has been affirmed. Both the orders of
courts below are challenged by the
revisionists in present criminal appeal.
Thus, the criminal Revision No.4105 of
2022 has been filed by the husband of the
applicant against judgement and order of
Additional Principal Judge, Family Court
whereas in Criminal Revision No.2373 of
2022, judgment and orders of both the
courts below are challenged by the
respondents, including husband of the
complainant.

3. As both the criminal revisions are
related to same contesting parties and
relates to similar matter, thus, these
criminal revisions are being decided by this
common judgment:-

4. The factual matrix of the case are
that the marriage of the revisionist Abhijit
@ Rahul and Smt. Poonam Sharma-
respondent No.2 was solemnized on
19.6.2014. According to applicant, her
father spent around Rs.10 lacs in the
marriage but her husband and in-laws were
nto satisfied with the gifts and cash given
in the marriage. They started demanding a
Santro Car and Rs.1 lac cash as additional
dowry. The parents of the applicant tried to
make them understand their inability to
fulfill their demands but they did not oblige
and persisted in making their demands. The
husband of the applicant used to engage in
anal intercourse with the applicant against
the order of nature and the applicant raised
a complaint to her in-laws regarding this
offending act of her husband but they even
countenanced the commissions of her
husband. One day, she was speaking to her
family members on telephone, suddenly her
husband, father-in-law, mother-in-law and
sister-in-law Arushi confronted her, abused
her and gave beating to her due to which
she suffered injuries. She narrated the
incident to her father when he visited her
on 5.8.2015 and he took her alongwith him
to his place. The applicant and his parents
11 All. Abhijeet @ Rahul Vs. State of U.P. & Anr.
687
waited for sometime that good sense will
prevail amonst her husband and in-laws.
Her father even visited her in-laws on
24.10.2015 and tried to make reconciliation
but the husband and in-laws of the
applicant refuses to listen to him and keep
the applicant with them. The applicant has
been residing with her parents since then
and has now become a burden over them.
The opposite party Abhijit works in a
private company namely, Dayal Group,
Meerut and earns around Rs.40,000/- as
monthly salary. The applicant is a home
maker and she has not having any
independent
source
of
income.
In
proceeding under Protection of Women
from Domestic Violence Act, the applicant
further stated that she was subjected to anal
intercourse by her husband in the night of
2.8.2015 forcefully, which caused much
pain to her. When her father visited her
husband and in-laws on 5.8.2015, her inlaws directed him to take her alongwith
him otherwise same things will be done to
her. In proceeding under Protection of
Women from Domestic Violence Act
summons were served on respondent, who
includes husband, parents-in-law and sisterin-law of the complainant through District
Protection Officer but even after holding of
service as sufficient by court of learned
Magistrate, they neither appeared nor filed
any objection or written statement therein
and the case proceeded ex-parte against
them. Complainant examined himself in
evidence as PW-1, in which she supported
complaint version and learned court below
considered the evidence on record and
observed that the complainant could not
make any statement in her complaint or
affidavit, which could prove the monthly
income of opposite party No.1. Therefore,
on the basis of meticulous consideration of
material on record, the Court is of the
opinion that the opposite paty No.1- the
husband of the complainant be directed to
pay Rs.2500/- as monthly payment to meet
out the food, cloth, medical and other basic
necessities of the applicant from the date of
order i.e. 8.1.2019. The respondents were
also directed to provide accommodation of
one room to the applicant in shared
household and they were directed to refrain
from causing any physical or mental pain to
the complainant.

5. The opposite parties filed a
criminal appeal against judgdment and
order passed by learned Magistrate before
the court of Session. Learned Appellate
Court considered the material placed on
record and observed that even after service
of summons, the appellant failed to appear
before the court below. Learned court
below held service of summon as sufficient
on opposite party through registered post
vide order dated 16.8.2018. The notice
under Domestic Violence Act may be
served on respondents in accordance with
the provisions of Section 12(c) of the Act
as well as under Order 5 CPC or Chapter
VI of Cr.P.C. The applicant failed to appear
on many dates during the course of hearing
of appeal and it appeared that they are not
having any interest in proceeding with the
criminal appeal. The amount of Rs.2500/-
as monthly maintenance awarded to the
applicant is proper. So far as the
allegations of demand of dowry
levelled against the appellants is
concerned, this is a question of fact,
which may be decided on merits of
the case. The notice was also served
upon
the
opposite
parties
and
appellants
through
District
Protection Officer. Learned appellate
court dismissed the appeal filed by
the opposite parties in proceeding
under Protection of Women from
Domestic Violence Act.
688 INDIAN LAW REPORTS ALLAHABAD SERIES

6. From perusal of record, it also
appeared
that
respondent
No.2
Smt.
Poonam Sharma also lodged an FIR against
her husband and parents-in-law and sisterin-law Arushi (nand) on 15.11.2015, as
Case Crime No. 114 of 2015, under
Sections 498-A, 370, 323, 504 IPC and 3/4
of D.P. Act, wherein she has made
accusation of demand of dowry, subjecting
her matrimonial cruelty, ill treatment and
physical assault against her husband and inlaws
in
general
and
allegation
of
committing unnatural intercourse with her
against her husband in particular on
2.8.2015. The matter was referred to
Mediation
Center
vide
order
dated
9.12.2015 in Criminal Misc. Writ Petition
No.28945 of 2015 and till the next date of
listing, arrest of the petitioners-accused
persons was stayed. However, the interim
order was vacated and writ petition was
dismissed for want of prosecution vide
order dated 15.3.2016 passed by this Court.
The police investigated the case and filed
charge-sheet against accused Abhijit @
Rahul, Shiv Kumar and Smt. Veenus, under
Sections 498-A, 323, 504 IPC and 3/4 of
D.P. Act, after conclusion of investigation
and dropped the name of unmarried sisterin-law of the applicant as her naming in
FIR was found false. No offence under
Section 377 IPC was found to be made out
against the accused Abhijit. The accused
persons were enlarged on bail vide orders
of trial court after filing of chargesheet.

7. In impugned judgment and order
dated
12.9.2022,
passed
by
learned
Additional Principal Judge, Family Court,
the opposite party Abhijit alias Rahul
appeared and filed written statement before
the Court as 17-B/5 and admitted the
factum
of
marriage
with
applicant.
However, he denied the allegations of
demand of dowry made against him and his
family members. He further stated that the
applicant used to hanging around telephone
till mid night and used to visit her parental
home after a gap of every two or three
weeks and when he objected to this, she
would create fuss and used to misbehave
with him and his family member, getting
annoyed of the protest made by her
husband towards her conduct. She was
even caught while speaking to some person
in he late night on mobile phone and she
did not show her mobile phone on being
asked. He denied committing any unnatural
sexual act with the applicant. She left her
matrimonial home out of her own free-will,
as a mark of protest of objection made by
her husband and in-laws to the aforesaid
conduct of the applicant. She lodged false
FIR against her husband and in-laws of
matrimonial cruelty and demand of dowry.
He also stated that at present he is
unemployed. The applicant has passed
B.Ed Examination and she is also a
Diploma holder of NTT and IGD, Bombay
Art and she earns Rs.20,000/- per month by
giving tuition. She is more educated than
opposite party and is able to maintain
herself. She is earning sufficiently while
residing at her parental place against
wishes of husband. She is not dependent on
her parents.

8. Learned court below considered the
statement of APW-1 Smt. Poonam Sharma
and statement of OPW-1 Abhijit @ Rahul
and OPW-2 Shiv Kumar and after hearing
the submissions of learned counsel for the
parties held that this is admitted fact that
the applicant is legally wedded wife of
opposite party. She is residing at her
parental place due to sufficient reason and
reasonable cause. She has denied to make
earning from private work and stated that
she is homemaker. She has not learned
stitching, weaving or embroidery and she is
11 All. Abhijeet @ Rahul Vs. State of U.P. & Anr.
689
qualified lady and M.A., B.Ed passed out.
She has also obtained NTT Diploma from
IGD Bombay Art but she does not teach in
any school. She has not even taught in any
school prior to filing of the case. According
to the learned Additional Principal Judge,
Family Court, opposite party cannot shirk
from his responsibility to maintain his wife,
which is his legal and moral responsibility.
This is the requirement of justice that the
applicant should be made to lead her life in
the manner and up to the standard which
she was leading while living with her
husband. Learned court below also cited
certain judgments of this Court and other
High Courts in support of his finding that
merely due to the fact that the applicant is
an educated lady, she cannot be divested to
seek maintenance from her husband in
absence of any independent source of
income of her. Learned court below also
observed that the applicant failed to adduce
any cogent, factual or reliable evidence in
support of the income of the opposite party.
Although, she has stated that the opposite
party works in Dayal Group, Meerut and
earns Rs.40,000/- as monthly salary. The
opposite party has stated in his objection
that presently he is unemployed. He has
stated in his cross-examination that he has
done MBA in the year 2010 and he was
engaged in a job in Dayal Fertilizers,
Meerut at the time of marriage and his
gross salary was Rs.26,178/- per month
with Rs.1500/- annual increment. He has
also stated that his father was employee in
State Insurance Corporation and retired in
the year 2019. Thus, the opposite party has
admitted this fact that he has earned a
professional degree of MBA and he is
highly educated and is able to earn income
and he is capable to maintain his wife,
which is his legal and moral responsibility.
Learned court below also considered the
fact that in proceeding under Domestic
Violence Act in Complaint Case No.1503
of 2015, learned Magistrate has also
awarded Rs.2500/- monthly maintenance to
the applicant, which is payable by opposite
party. After considering the principle of
balancing between the litigating parties and
totality of facts and circumstances of the
case, the learned Family Judge has awarded
Rs.4,000/- as monthly maintenance from
the date of filing of application to date of
judgment and thereafter Rs.8000/- per
month as monthly maintenance.

9. Learned counsel for the revisionist
submitted that opposite party No.2 is more
educated than the revisionist. She is
capable of earning. An ex-parte decree of
divorce has been awarded in favour of the
revisionist but opposite party No.2 has filed
an appeal before this Court against the
decree of divorce. The revisionist is not
earning at present and is not able to pay the
amount
of
maintenance
awarded
in
proceeding under Sections 18, 19, 20 of
Protection of Women from Domestic
Violence Act. He has paid the amount
awarded in proceeding under Domestic
Violence Act to the complainant. However,
for want of any regular income, the
revisionist is not in a position to pay the
amount awarded by Additional Principal
Judge, Family Court. Learned Additional
Principal Judge, Family Court failed to
consider the fact that the income of the
revisionist
has
not
been
proved
in
proceeding intiated by the applicant, he
should not be saddled with providing
maintenance to his wife, that too to the tune
of Rs.8,000/- quantified in impugned
judgment and order. The real bone of
contention between the parties is that the
applicant used to engage in long telephonic
conversation with some person, which was
objected by her husband and in-laws but
she failed to mend her ways and instead left
690 INDIAN LAW REPORTS ALLAHABAD SERIES
her matrimonial home on her own. The
revisionist has also filed copies of demand
draft as Annexure No.8 to the revision
memo in support of his plea that he has
been paying the amount of maintenance
awarded by the learned Magistrate in
proceeding under Domestic Violence Act.
The allegations made against the revisionist
are false and frivolous and have no leg to
stand. He made his best efforts to get back
the association of his wife but for the
reason best known to her, she refused to
live with him. The impugned order dated
12.9.2022 is nothing but an abuse of
process of law. The monthly amount
awarded in impugned judgement by family
court is not proportionate to the income of
the revisionist. Learned court below has
overlooked the fact that the revisionist has
been directed to pay Rs.2500/- to opposite
party No.2 in proceeding under Domestic
Violence Act and the same has been paid
till August, 2022 and there is no arrears due
upon the revisionist. As a matter of fact, the
revisionist has never received any notice
and summon in proceeding under Domestic
Violence Act ever issued by learned
Magistrate. Both the courts below have
acted on the basis of presumption that
summon has been served upon him. The
proceeding were decided by learned
Magistrate ex-parte without any knowledge
of the revisionist and same is liable to be
set aside and appropriate orders may be
passed in present criminal revision.

10. Learned counsel for the opposite
party No.2 as well as learned AGA has
vehemently opposed the contentions made
by the learned counsel for the revisionist
and submitted that the impugned orders
passed by the learned Magistrate, learned
appellate court as well as learned Session
Judge after considering the material placed
on record and there is no illegality,
irregularity or perversity in the impugned
orders.

11. Here, it would be pertinent to
mention the provisions of Section 125
Cr.P.C.:-

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, a Magistrate
of the first class may, upon proof of such
neglect or refusal, order such person to
make
a
monthly
allowance for
the
maintenance of his wife or such child,
father or mother, at such monthly rate not
exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the
same to such person as the Magistrate may
from time to time direct: Provided that the
Magistrate may order the father of a minor
female child referred to in clause (b) to
make such allowance, until she attains her
majority, if the Magistrate is satisfied that
the husband of such minor female child, if
married, is not possessed of sufficient
means."
11 All. Abhijeet @ Rahul Vs. State of U.P. & Anr.
691

12. Hon'ble Apex Court in paragraph
No.15 of a judgement passed in Kirtikant
D. Vadodaria vs State Of Gujarat & Anr
(1996) 4 SCC 489 held that "While dealing
with the ambit and scope of the provision
contained in Section 125 of the Code, it has
to be borne in mind that the dominant and
primary object is to give social justice to
the woman, child and infirm parents etc.
and to prevent distitution and vagrancy by
compelling those who can support those
who are unable to support themselves but
have a moral claim for support. The
provisions in section 125 provide a speedy
remedy to those women. children and
destitute parents who are in distress. The
provisions in Section 125 are intended to
achieve this special purpose. The dominant
purpose behind the benevolent provisions
contained in Section 125 clearly is that the
wife, child and parents should not be left in
a helpless state of distress, destitution and
starvation."

13. Hon'ble Apex Court in K.Vimal
vs K.Veeraswamy (1991) 2 SCC 375
while discussing the basic purpose of
Section 125 of the Code of Criminal
Procedure opined that Section 125 Cr.P.C.
is meant to achieve a social purpose. The
object
is
to
prevent
vagrancy
and
destitution. It provides a speedy remedy for
the supply of food, clothing and shelter to
the deserted wife.

14. The proceeding for maintenance
under Section 125 Cr.P.c. is of summary
nature and the purpose or object of the
same is to provide immediate relief to the
applicant. An application under Section
125 Cr.P.C. can be moved by the wife on
fulfillment of two conditions:- (a) the
husband has sufficient means, (b) he
neglects or refuses to maintain his wife,
who is unable to maintain herself. The
Magistrate, in such cases, may direct the
husband to pay such monthly sum of the
money,
as
deemed
fit
taking
into
consideration the financial capacity of the
husband and other relevant factors.

15. Delhi High Court in Chander
Parkash Bodh Raj vs Shila Rani
Chander Prakash, AIR 1968 Delhi 174
held that "an able-bodied young man has to
be presumed to be capable of earning
sufficient money so as to be able
reasonably to maintain his wife and child
and he cannot be heard to say that he is not
in a position to earn enough to be able to
maintain them according to the family
standard. It is for such able-bodied person
to show to the Court cogent grounds for
holding that he is unable, for reasons
beyond his control, to earn enough to
discharge
his
legal
obligation
of
maintaining his wife and child. In the
present case, as the husband has not frankly
disclosed to the Court, as he ought, his
allowances which he admittedly gets, the
presumption would be easily permissible
against him."

16. From the aforesaid annunciation
of law, it is obvious that the obligation of
the husband is on higher pedestal when the
question of wife and children arises. When
the woman leaves, it is the obligation of the
husband to maintain his wife. He cannot be
permitted to plead that he is unable to
maintain
his
wife
due
to
financial
constraints as long as he is capable of
earning. As per law, the wife is entitled to
live a life in the similar manner as she
would have lived in the house of her
husband and that is where the status and
stata of the husband becomes a prominent
one, as long as the wife is held entitled to
grant of maintenance within the parameters
of section 125 Cr.P.C., it has to be adequate
692 INDIAN LAW REPORTS ALLAHABAD SERIES
so that she can live with dignity as she
wold have lived in her matrimonial home.

17. Hon'ble Supreme Court in
Chaturbhuj Vs. Sita Bai, (2008) 2 SCC
316 has held the grant of maintenance to
wife is a measure of social justice. The
court held as under:-

"Section
125
Cr.P.C.
is
a
measure of social justice and is specially
enacted to protect women and children and
as noted by this Court in captain Ramesh
Chander Kaushal v. Veena Kaushal,
(1978) 4 SCC 70 falls within constitutional
sweep of Article 15(3) reinforced by Article
39 of the Constitution of India. It is meant
to achieve a social purpose. The object is to
prevent
vagrancy
and
destitution.
It
provides a speedy remedy for the supply of
food, clothing and shelter to the deserted
wife. It gives effect to fundamental rights
and natural duties of a man to maintain his
wife, children and parents when they are
unable
to
maintain
themselves.
The
aforesaid position was highlighted in
Savitaben Somabhai Bhatiya v. State of
Gujarat (2005) 3 SCC 636.

18. A Division Bench of Madhya
Pradesh High Court in the case of Durga
Singh Lodhi Vs. Prembai and others, 1990
Cr.L.J. 2065 has held that mere absence of
visible means or real estate will not entitle
such a person to escape the liability to pay
maintenance
awarded
under
Section
125(1), as even at the stage of enforcement
of the order under Section 125(1), an able
bodied healthy person capable of earning,
must be subjected to pay maintenance
allowance. If, with this visible capacity to
earn, he avoids payments, it has to be held
that he has so done for no sufficient cause.
If such a person avoids to discharge that
obligations despite issuance of a distress
warrant,
he
can
be
sentenced
to
imprisonment for a term specified in subsection (3) of Section 125 Cr.P.C.

19. In a decision of Hon'ble Supreme
Court in the case of Shamima Farooqui
Vs. Shahid Khan, AIR 2015 SC 2025,
Hon'ble Supreme Court has held as under:-

"A woman, who is constrained to
leave the marital home, should not be
allowed to feel that she has fallen from
grace and move hither and thither
arranging for sustenance. As per law, she
is entitled to lead a life in the similar
manner as she would have lived in the
house of her husband. And that is where the
status and strata of the husband comes into
play and that is where the legal obligation
of the husband becomes a prominent one.
As long as the wife is held entitled to grant
of maintenance within the parameters of
Section 125 Cr.P.C., it has to be adequate
so that she can live with dignity as she
would have lived in her matrimonial home.
She cannot be compelled to become a
destitute or a beggar."

20. In present case an admitted fact
emerges on the basis of admission of
parties during their evidence before the
Family Court that the revisionist is an
MBA qualified person and was working in
a
private
company
namely
Dayal
Fertilizers, Meerut at the time of marriage
and at that time his salary was Rs.26,178/-
accompanied with yearly increments. His
father retired in the year 2019, who was
posted in State Insurance Corporation,
however, the revisionist has stated that at
present he is unemployed. The applicant
could not rebut this statement and failed to
produce any evidence regarding his income
and earnings at the time when parties
adduced their evidence before the court
11 All. Abhijeet @ Rahul Vs. State of U.P. & Anr.
693
below. However, this is admitted position
that he is capable of earning being an MBA
qualified person, who was previously
employed in a private company. On the
other hand he failed to adduce any evidence
regarding any independent income of the
applicant despite the fact that she is also
qualified woman and is capable of earning.

21. Hon'ble Apex Court in Shailja vs
Khobbanna,
AIR
2017
SC
1174
addressed
the issue
of
quantum
of
maintenance of a professionally capable
woman and laid down that such a woman
too have a right to maintenance and that,
the courts must take into consideration the
difference
between
the
capability
of
earning and the actual earning of the
applicant-wife while deciding upon the
quantum of maintenance. Merely because
the applicant-wife is capable of earning is
not sufficient reason to
reduce
the
maintenance awarded by the family court.

22. In Sunita Kachwaha And Ors vs
Anil Kuchwaha, Hon'ble Apex Court in
judgment dated 28.10.2014 passed in
Criminal Appeal No.2310 of 2014 held that
"Inability to maintain herself is the precondition for grant of maintenance to the
wife. The wife must positively aver and
prove that she is unable to maintain herself,
in addition to the fact that her husband has
sufficient means to maintain her and that he
has neglected to maintain her. In our
considered view, merely because the
appellant-wife is a qualified post graduate,
it would not be sufficient to hold that she is
in a position to maintain herself. In any
event, merely because the wife was earning
something, it would not be a ground to
reject her claim for maintenance."

23. In present case, the learned
Family Court has not quantified the
monthly income of the revisionist in
absence of any evidence regarding his
present employment but has come to the
conclusion that he has sufficient means to
provide maintenance to his wife. Learned
counsel for the respondent No.2 also
submited that the revisionist has contracted
second marriage after decree of divorce,
which is under challenge at the instant of
opposite party No.2. Therefore, I find no
substantial error in impugned order passed
by learned Magistrate in proceeding under
Domestic Violence Act as well as the
impugned
order
passed
by
learned
Additional Principal Judge, Family Court,
Meerut in
present
criminal
revision.
However, this fact is liable to be taken into
consideration that the revisionist has filed
copies of bank draft through which he has
paid the amount awarded by the learned
Magistrate in proceeding under Domestic
Violence Act to the opposite party No.2.
Apart from Rs.2500/- per month in
proceeding under Domestic Violence Act,
in proceeding under Section 125 Cr.P.C.,
the
learned
Family
Court
awarded
maintenance of Rs.4,000/- per month from
the date of application to date of judgment
and thereafter, at the rate of Rs.8,000/- per
month with observation that any amount
received by the applicant previously shall
be liable to be adjusted in present order,
under Section 125 Cr.P.C. Therefore, in
absence of ascertainment of any fixed
income of the husband but his ability to
earn, I am of the opinion that the amount
awarded in proceeding under Section 125
Cr.P.C. is liable to be reduced to some
extent with a view to strike a balance of
equities in respect of both the parties.

24. The Criminal Revision No.2373
of 2023 filed against ex-parte judgement
and order dated 8.1.2019 passed by
Additional
Chief
Judicial
Magistrate,
694 INDIAN LAW REPORTS ALLAHABAD SERIES
Bulandshahr in Case No.1503 of 2015
(Smt. Poonam vs. Abhijit @ Rahul and
others), under Sections 18, 19 and 20 of
Domestic Violence Act, Police Station
Kotwali Nagar, Bulandshahr as well as
order dated 6.7.2019 passed in Criminal
Appeal No.11 of 2019 is hereby dismissed
and impugned orders passed by courts
below are affirmed.

25. The Criminal Revision No.4105
of 2022 is partly allowed and the
impugned order dated 12.9.2022 passed by
learned Principal Judge, Family Court is
modified to the extent that the amount of
maintenance awarded from the date of
application to date of judgement to the tune of
Rs.4000/- per month is kept intact and affirmed
but instead of Rs.8,000/- per month awarded from
the date of judgment, is modified to the extent of
Rs.6,000/- per month, subject to other conditions
imposed in impugned judgment by Family Court.
----------
(2023) 11 ILRA 694
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 133 of 2022

Haridas Yadav ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Arun Sinha, Ram Chandra Singh, Siddhartha
Sinha, Smriti

Counsel for the Opposite Parties:
G.A., Vivek Singh

Criminal
Law-The
Scheduled
Castes
and
Scheduled Tribes (Prevention of Atrocities)
Act,1989-Section 14-A (2)---Criminal appeal against
impugned order rejecting the bail of the appellant under
Sections 452, 456, 376, 354, 504, 506 I.P.C. and Section
3(1) (dha), 3 (2) (5), 3(2) (5) a SC/ST Act---Prosecutrix
is living with her family members and her family is a joint
family and it is not possible for the appellant or any other
person to commit the alleged crime and they were not
aware about the said incident or no action has been
taken by those person or by the prosecutrix for last six
months, as alleged by the prosecutrix in the F.I.R., which
clearly establish that a totally improbable story has been
called out by the prosecutrix in the F.I.R. as well as in her
St.ment recorded under Section 161 and 164 Cr.P.C.;---
The present F.I.R. has been lodged only with the enmity
of the sitting Pradhan, as the sitting Pradhan of the
village is inimical to the appellant as the appellant is the
supporter to the other candidate, who contested
against
the
sitting
Pradhan---The
parties
appears to be consenting parties; further
considering the fact that appellant is in jail since
26.07.2021 and has now by done a substantial
period of detention----The learned court below
has failed to appreciate the material available on
record, the impugned order passed by the trial
court is liable to be set aside.

Appeal allowed.(E-15)

List of the cases referred-:

1. Kamal Vs St. of Har., 2004 (13) SCC 526

2. Dataram Singh Vs St. of UP & anr., reported
in (2018) 3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. Heard Ms. Smriti, the learned
counsel for the appellant as well as Sri
Ashok Kumar Singh, the learned A.G.A.
for the State-opposite party No. 1 and
perused the entire record.

3. Learned A.G.A. has filed counter
affidavit and in reply thereto learned
counsel for the appellant has filed rejoinder
affidavit.