# Arpit Saxena Revisionist v. Smt. Nancy Saxena

- **Citation:** (2023) 5 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-02
- **Case number:** Criminal Revision No. 2581 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arpit-saxena-revisionist-v-smt-nancy-saxena-50069
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision,
Section
125
-
Order
for
maintenance
of
wives,
children
and
parents - Court must assess the wife's
income and determine if she can sustain
herself
in
the
husband's
house
-
Sustenance does not mean survival, as per
section 125 - Right to claim maintenance
must date back to the filing of the
application, as the pending maintenance
proceedings are not within the applicant's
control - claimant wife's employment and
husband's economic resources must be
considered
when
awarding
interim
102 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance, considering her income,
genuine needs, and standard of life. (Para
- 11,12)

Opposite party filed application under Section
125 Cr.P.C. - against her husband-revisionist -
application moved under Section 18A by
applicant (opposite party) - partly allowed -
revisionist had been directed to pay Rs. 4,000/-
as maintenance - on monthly basis to opposite
party - from date of filing of application - durin.
(Para -3)

HELD:- Court awarded Rs. 4,000/- as interim
maintenance to the opposite party in her
petition under Section 125 Cr.P.C.against the
revisionist /husband. It is not unreasonable,
excessive, or unfair to the revisionist. No good
ground to interfere with the award, and the
revision lacks merit.(Para -13,)

Revision dismissed. (E-7)

List of Cases cited:

## Text

5 All. Arpit Saxena Vs. Smt. Nancy Saxena
101

(d) In Iqbal Singh Vs. State of
Haryana, 1985 CrLJ 1757 (P& H), it has
been held that when Civil Court directs
maintenance of status quo, it postulates that
the Civil Court is not sure as to which party
is in possession. It virtually directs that if
the contention of either one of them
supposedly was right then that position
should be continued. In this backdrop the
Magistrate can initiate proceeding to decide
which party was in possession. For breach
of peace he can invoke Section 107, Cr.P.C.
Although he can not attach the property.

(e) In Anand Ram Vs. State of
Delhi, 1986 CrLJ 2008, it has been held
that when a civil suit is pending and the
parties have been directed to maintain
status quo, initiation of proceeding under
Section 145 Cr.P.C. is improper.

(f) In Mohinder Singh Vs.
Dilbagh Rai, 1977 CrLJ 1029, it has been
held that in cases of dispute of possession
civil court can pass three types of orders-
(a) appointment of receiver; (b) granting
injunction against a party; and (c) direction
to maintain status quo. In first type of cases
there can not be any dispute giving rise to
proceeding under Section 145 Cr.P.C. In
second type of cases jurisdiction of
criminal court can not be restricted and if
so required Magistrate may have to start a
parallel proceeding but only to defend the
order of civil court by not allowing the
aggressor
to
come
in
violating
the
command of civil court. In third type of
cases Magistrate may intervene but only to
defend
the
civil
court's
order
by
maintaining status quo.

15. In view of the above discussion,
this Court is of the considered conclusion
that the impugned order is not liable to be
sustained.

Order

16.
This
criminal
revision
is
accordingly allowed and the impugned
order dated 02.05.2013 passed by SubDivisional Magistrate, Robertsganj, District
Sonbhadra in Case No.39 of 2013 (Smt.
Prema Devi Vs. Rajkeshwar Yadav), under
Section 146(1) CrPC is hereby quashed.
----------
(2023) 5 ILRA 101
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2581 of 2022

Arpit Saxena ...Revisionist
Versus
Smt. Nancy Saxena ...Opposite Party

Counsel for the Revisionist:
Sri Pramod Kumar Sinha

Counsel for the Opposite Party:
Sri Arvind Srivastava III

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision,
Section
125
-
Order
for
maintenance
of
wives,
children
and
parents - Court must assess the wife's
income and determine if she can sustain
herself
in
the
husband's
house
-
Sustenance does not mean survival, as per
section 125 - Right to claim maintenance
must date back to the filing of the
application, as the pending maintenance
proceedings are not within the applicant's
control - claimant wife's employment and
husband's economic resources must be
considered
when
awarding
interim
102 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance, considering her income,
genuine needs, and standard of life. (Para
- 11,12)

Opposite party filed application under Section
125 Cr.P.C. - against her husband-revisionist -
application moved under Section 18A by
applicant (opposite party) - partly allowed -
revisionist had been directed to pay Rs. 4,000/-
as maintenance - on monthly basis to opposite
party - from date of filing of application - durin.
(Para -3)

HELD:- Court awarded Rs. 4,000/- as interim
maintenance to the opposite party in her
petition under Section 125 Cr.P.C.against the
revisionist /husband. It is not unreasonable,
excessive, or unfair to the revisionist. No good
ground to interfere with the award, and the
revision lacks merit.(Para -13,)

Revision dismissed. (E-7)

List of Cases cited:

1. Ankur Gupta Vs St. of U.P., 2021 (5) ADJ 640

2. Kiran Tomar & ors. Vs St. of U.P. & anr. ,
Criminal Appeal No. 1865 Of 2022

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

1. Heard learned counsel for the
revisionist and learned counsel for the
respondent and perused the material on
record.

2. The present criminal revision is
filed against the order dated 24.5.2022
passed by Principal Judge, Family Court,
Rampur in Criminal Misc. Case No. 596 of
2019 (Smt. Nancy Saxena vs. Arpit
Saxena) under Section 125 Cr.P.C. whereby
application moved under Section 18A by
the applicant (opposite party) has been
partly allowed and the revisionist had been
directed to pay Rs. 4,000/- as maintenance
on monthly basis to opposite party Smt.
Nancy Saxena from the date of filing of the
application and during the pendency of
application under Section 125 Cr.P.C.

3. The brief facts of the case are that
the opposite party filed an application
under Section 125 Cr.P.C. before the
Principal Judge, Family Court against her
husband- revisionist with averments that
marriage of the applicant and opposite
party was solemnized on 9.5.2017 as per
Hindu rites and rituals at Rampur and no
dowry was agreed between the parties in
the marriage, however, after solemnizing
marriage, opposite party and his family
members started demanding dowry on
pretext of purchasing a plot in Delhi and
when the applicant expressed inability of
her father to fulfill the demand of her
husband and in-laws, they subjected her to
mental and physical agony and opposite
party used to make unnatural physical
relation with the applicant against her will
and she was ultimately turned out from her
matrimonial home; she is presently residing
at the place of her parents; he is not paying
a single penny for her maintenance after
keeping her out from his home therefore, it
is
prayed
for
providing
interim
maintenance from the date of filing of
application, which was partly allowed on
24.5.2022 directing the revisionist to pay
interim maintenance Rs. 4,000/- per month
to the applicant.

4. Learned counsel for the revisionist
submitted that impugned order passed by
the family court is manifestly erroneous
and unsustainable in the eyes of law as
same was passed without considering the
materials
placed
on
record;
findings
recorded in the impugned order are based
5 All. Arpit Saxena Vs. Smt. Nancy Saxena
103
on
misreading
of
facts
and
illegal
presumption; the findings in the impugned
order that as per the income tax return
2021-22 submitted by the husband, his
annual income is Rs. 2,59,000/-, therefore,
prima facie, he has sufficient income; it is
apparent from the said income tax return
2021-22 that under Section 44AD of the
Income Tax Act the annual income of the
husband from his business/medical shop is
Rs. 79,000/- only and the arrears of salary
Rs. 1,80,000/- received by him for the
services rendered earlier in the private
concern has been shown under section
44ADA that is not his regular income but
while passing the impugned order the
family court has illegally added both said
income (mentioned under 44AD and under
Section 44ADA) in his regular income. In
the income tax return total income has been
added for the purpose of computation of
income tax in that particular assessment
year; it is not the regular income of the
husband. In the impugned order the family
court recorded the findings that the wife
has been working as a teacher and
receiving Rs. 13,000/- per month as her
salary, therefore, it was incumbent upon the
court below to assess the income of the
husband and compare it to the income of
the wife before granting the interim
maintenance but it has wholly illegally
observed, "his income is sufficient" which
is misconceived and against the settled
proposition of law. It is apparent from the
record that monthly income of the wife is
admittedly more than the income of the
husband and she is able to maintain herself,
therefore,
she
is
not
entitled
for
maintenance.
There
are
three
cases
including the present one filed by the wife
against the husband which are pending
before the District Court, Rampur, which is
too far from the district Bhopal of Madhya
Pradesh and on different dates the husband
comes to Bhopal to Rampur for attending
the cases by expending huge amount and
on those dates he keeps his medical shop
closed, means he does not earn a single
penny on those days, which amounts to
great harassment to him.

5. He lastly submitted that due to highhandedness and untoward conduct of wife,
revisionist became mentally disturbed and
unfit for job and ultimately he had to resign
from service; he was working as Manager
in
Strategic
Alliance
Company
and
Management Pvt. Ltd. where he was
working at the time of marriage and now he
is running a small medical shop wherein he
earns Rs. 8,500/- per month which is not
sufficient for his own survival and bearing
cost of a number of litigations filed against
him at the instance of opposite party; the
amount of interim maintenance awarded by
the court below is too much and excessive
and is disproportionate and he is not in a
position to bear the same; the opposite part
is well educated and a skilled lady, who
herself is in a position to maintain her and
such she is not entitled for interim
maintenance, therefore present revision
may be allowed and the impugned order
passed by the court below may be set aside.

6. Learned counsel for the respondent
submitted that the impugned order has been
passed on the application for interim
maintenance moved by the applicant for
maintenance case under Section 125
Cr.P.C.; the order passed by the court below
is in the form of an interim measure, which
has been passed after considering the
pleadings of the parties and documentary
evidence on record, finding of fact should
not be disturbed or interfered in revision as
there is no illegality, irregularity or
104 INDIAN LAW REPORTS ALLAHABAD SERIES
perversity in the impugned order passed by
the court below; the amount of interim
maintenance is at lower side as applicant
had
sought
Rs.
3500/-
as
interim
maintenance in her application, in Misc.
maintenance case under Section 125
Cr.P.C. court has awarded only Rs.4000/-
as interim maintenance and same is not
liable to be interfered in revision filed by
the opposite party before the court below; it
cannot be comprehend that the revisionist
who admittedly runs medical retails shop is
earning Rs. 8500/- per month only
therefrom whereas this is admitted fact that
he has undergone B.Pharma and some
diploma also; the respondent is victim of
domestic violence meted out to her by the
revisionist; she was thrown out from her
matrimonial home by her husband and she
had to depend on her parents who cater to
her needs and shelter whereas her father
himself is at present jobless.

7. Learned counsel for the respondent
placed reliance on the judgement of this
Court in Ankur Gupta vs. State of U.P.,
2021 (5) ADJ 640, wherein this Court held
that monetary relief granted under Section
125 Cr.P.C. shall be adequate, fair and
reasonable and consistent with the standard
of living to which aggrieved person is
accustomed merely because wife is capable
of earning, is not sufficient ground to refuse
claim of maintenance granted by the court
to the minor daughters of opposite party no.
2. In Kiran Tomar and others vs. State of
U.P. and another in Criminal Appeal No.
1865 of 2022 the Hon'ble Apex court in
para-10 has observed as under:-

"On the first aspect, it is wellsettled that income tax returns do not
necessarily furnish an accurate guide of the
real income. Particularly, when parties are
engaged in a matrimonial conflict, there is
a tendency to underestimate income.
Hence, it is for the Family Court to
determine on a holistic assessment of the
evidence what would be the real income of
the second respondent so as to enable the
appellants
to
live
in
a
condition
commensurate with the status to which they
were accustomed to during the time when
they were staying together. The two
children are aged 17 and 15 years,
respectively, and their needs have to be
duly met."

8. In present case, in income tax return
2021-22 filed by the revisionist, he has
shown is annual income as Rs. 2,59,000/-,
which has been taken into account by the
court below while awarding the interim
maintenance
to
the
applicant/opposite
party; case of the revisionist is that opposite
party in her statement of assets and
earnings filed in the form of affidavit in
compliance of direction of Hon'ble Apex
Court has stated her monthly earning as Rs.
13,000/-; according to the revisionist, the
applicant works as a teacher in Whitehall
Public School, Rampur.

9. In income tax return and assessment
year 2021-22 revisionist has shown his
income under Section 44 AD Rs. 79,000/-
and income under Section 44ADA as Rs.
1,80,000/-, which is total income in that
assessment year is shown as Rs. 2,59,000/-.
Under Section 44AD of Income Tax Act
presumptive
taxation
scheme
for
a
businessman is provided whereas under
Section 44 ADA the presumptive income
for a professional is provided; thus even if
it is assumed that income Rs. 1,80,000/-
was income earned from arrears of salary
5 All. Arpit Saxena Vs. Smt. Nancy Saxena
105
received by the revisionist from her
previous employment and income earned
from his medical shop is shown as Rs.
79,000/- yearly, same cannot be treated as
actual annual income because Section itself
covers the presumptive income for a small
businessman, whose turnover is less than
20 crore prior to budget of 2020; the
revisionist is well qualified pharmacist and
it cannot be presumed on that basis that he
earns only Rs. 8,500/- per month from the
shop and it cannot be treated with finality
at the stage of deciding an application for
interim maintenance, which is an interim
measure during pendency of application
under Section 125 Cr.P.C.; learned court
below has awarded interim maintenance of
Rs. 4,000/- to the opposite party after
keeping into account the affidavit 13kha
filed by the applicant in the form of assets
and liability; she has also stated that her
salary as teacher received from school is
not her regular income. The revisionist has
not filed any bank statement in support of
his claim that he is a man of meager
economic resources.

10. Claiming maintenance is one of
the most formidable tools in the armoury of
deserted wife to be able to support herself,
and is thus crucial for the accomplishing
goal
of
social
justice.
Courts
have
established caveats necessary to prevent its
abuse. Certain guidelines have been setup
by Hon'ble Supreme Court in its judgement
in the case of Rajnesh vs. Neha, (2021) 2
SCC 324. Said criteria include the parties'
status, the applicant's (in this case the
wife's) needs, and the respondent's income
and property, the claimant's liabilities and
financial responsibilities, the parties' age
and
employment
status,
the
parties'
residential arrangements, the parties' minor
children's maintenance, and illness or
disability etc.

11. In Rajnesh (supra) it is held that if
the wife is earning some income, it cannot
operate as a bar from being awarded
maintenance by the husband". The duty of
the court is to look at the income she is
earning in and of itself, and from that,
determine whether or nor she is capable of
sustaining herself in the manner and
lifestyle to which she is accustomed to in
the husband's house. Sustenance (as per the
provisions of section 125) doesn't mean and
cannot be allowed to mean survival. The
right to claim maintenance must date back
to the filing of the application since the
period during which the maintenance
proceedings remained pending is not within
the control of the applicant.

12. Thus, employment does not clarify
the claimant wife and while deciding the
question of award of interim maintenance
the income of claimant wife, nature of her
employment,
economic
resources
of
husband, genuine needs of wife, standard
of life, she was accustomed to live when
she had not live company of her husband
all these facts are to be kept in account.

13. Therefore, in my considered
opinion, reasonable amount Rs. 4,000/-
awarded to opposite party as interim
maintenance in her petition under Section
125 Cr.P.C. against the revisionist /husband
is not unreasonable, excessive or unfair to
the revisionist. Keeping in view the amount
of
maintenance
awarded
against
the
revisionist
and
attending
facts
and
circumstances of the case no good ground
106 INDIAN LAW REPORTS ALLAHABAD SERIES
appear to interfere in the impugned order
passed by the court below and revision
lacks merit and is liable to be dismissed.

14.
The
revision
is
accordingly
dismissed.

15. However, arrears of interim
maintenance prior to passing of impugned
order dated 24.5.2022 will be payable to
the applicant/opposite party in the form of
six equally monthly installments from the
date of production of certified copy of this
order before the court below provided the
revisionist shall pay amount of interim
maintenance on monthly basis to the
opposite party. However, it is made clear
that observations of this Court made therein
are only for the purpose of deciding present
revision and it will not be binding on court
below while deciding the maintenance
application on merits.
----------
(2023) 5 ILRA 106
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 4598 of 2009

Om Prakash Jain & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Vidya Prakash Singh

Counsel for the Opposite Parties:
Govt. Advocate, Sri Akshat Sinha, Sri Y.K.
Singh
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Indian Penal Code, 1860 -
Section-498-A
,Dowry
prohibition
Act,1961- Section 3/4 , cases where the
fact of death is disputed, caution must
be exercised - If no concrete conclusion
is reached, a separate miscellaneous
case may be registered and authorities
directed to provide evidence - appeal
cannot be left pending just because a
collateral issue or a question of mere
procedural importance has cropped up
which may demand calling for further
evidence and may require inquiry. (Para
- 6)

Case convicting all accused persons for
offences - convicts preferred an appeal - one
of appellants (husband of victim) died - victim
filed an application no. 55-B - stating that her
husband is still alive - forged and fake papers
given from side of appellants - to close case
against him. (Para -3)

HELD:- Appellate court should have instituted
a separate miscellaneous case to determine
the death of one appellant and proceed with
the rest's appeal. If forged paper submitted,
the court can institute an enquiry under
section 340 of Cr.P.C. or file an F.I.R. if fit in
the circumstances. Court directed to separate
case of appellant and inquire into his death,
while the rest of the appellants (revisionists)
will proceed as per law.(Para - 7,8)

Revision disposed of. (E-7)

List of Cases cited:

1. Madhu Limaye Vs The St. of Maha. , Crl.
Appeal No. 81 of 1977

2. Amar Nath & ors. Vs St. of Harayana & ors. ,
Crl. Appeal No. 124 of 1977

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Vidya Prakash Singh, learned
counsel for the revisionists and Sri O.P.