# Ashish Jaiswal Revisionist v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 4 ILRA 960
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-04
- **Case number:** Criminal Revision No. 5133 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-jaiswal-revisionist-v-state-of-u-p-ors-opp-parties-51876
- **Pages:** 11

## Headnote

Criminal Law - Code of Criminal Procedure,
1973 - Section 125 - Against maintenance
allowance - Revisionist contended that
opposite party no.2, voluntarily residing
away from him without cause - As per
ultrasound report, she was pregnant prior
to their marriage and opposite party no.3,
was not born from their wedlock, hence
both are not entitled to maintenance -
Counsel for opposite parties submitted that
trial court passed impugned order after due
consideration of facts and law as settled by
Supreme Court and opposite party no.2,
subjected
to
dowry
harassment
by
revisionist
and
his
family,
resides
separately with her daughter at her
paternal home, receiving no maintenance -
Revisionist has not disputed paternity of
daughter
in
his
written
St.ment
or
evidence, hence, such plea cannot be
raised at revision stage - Held, revisionist
failed to disclose his actual monthly
income,
warranting
an
adverse
presumption against him - He pleaded that
opposite party no.2 filed criminal and
domestic violence cases, and that he
suffers
from
depression,
undergoing
medical treatment, preventing him from
earning - However, no doctor prescription
or bill vouchers was produced, hence, his
unsubstantiated claim cannot be accepted -
Trial court rightly held that opposite party
no.2 is legally wedded wife and opposite
party no.3 is daughter born from their
wedlock - Finding that she has no earning
to maintain herself and her minor daughter
- Revisionist is capable of earning, but has
willfully neglected to maintain them, trial
court
reasonably
awarded
monthly
maintenance allowance to them - No merit
in criminal revision, dismissed. (Para 4, 5,
24, 25, 32)

Revision dismissed. (E-13)

List of Cases cited:

## Text

960 INDIAN LAW REPORTS ALLAHABAD SERIES

12. From the perusal of the evidence
available on the record of criminal revision, it
transpires that the deceased testator, Ram
Ujagir had 4 sons, namely, Tulsi Ram
(complainant), Krishna Ram, Krishna Mohan
and Phool Ram. Phool Ram died earlier
leaving behind his wife, Indramati and his
son, Vashistha. By the disputed will dated
15.01.1995, Ram Ujagir gave 1/4th share of
his property to Indramati who is widow of his
deceased son Phool Ram. The revisionist,
Tulsi Ram, Krishna Mohan, Krishna Ram
and Indramati are the legal heirs of deceased
Ram Ujagir. Only 1/4th share of the property
of Ram Ujagir has been given to Indramati
through the will.

13. It has been contended on behalf of
opposite party nos. 2 and 3 that since
Vashistha, son of deceased Phool Ram, is
mentally retarded, therefore, Ram Ujagir by
his will dated 15.01.1995 has given 1/4th
share of his property in favour of Indramati,
wife of Phool Ram. Mutation has been done
by the Consolidation Officer in favour of the
legatees in the revenue record on the basis of
the will. The appeal filed against the
aforesaid order of the court of Consolidation
Officer has been dismissed. The complainant
Tulsi Ram has filed a writ against the
aforesaid order of the S.O.C. in the Allahabad
High Court which has remitted the matter to
the consolidation authorities for passing a
fresh
order
after
giving both
parties
opportunity of hearing and filing evidence.
After remand of the case, the Consolidation
Officer, Bansi has again passed order on the
basis of the will dated 15.01.1995. The trial
court has also mentioned in the impugned
order that the revisionist has not filed any
other
documentary
evidence.
The
complainant has filed u/s 244 Cr.P.C. oral
evidence of himself as well as witness, Anil
Kumar. From their evidence, no doubt is
raised about the validity of the will.

14. From the evidence on record as well
as perusal of the impugned order, it transpires
that the disputed will dated 15.01.1995 was
assailed by the revisionist/complainant before
consolidation authorities as well before the
High Court but so far no adverse finding has
been recorded against the will. Apart from
this, the validity of the disputed will can be
decided only by the civil court and so far it
has not been declared invalid by the civil
court. It is well settled law that unless validity
of a document is not assailed by a competent
court, criminal proceeding on the basis of that
document for forgery, cannot proceed.

15.

Considering
the
facts
and
circumstances of the case and the law laid
down by the Hon'ble Apex Court in the
aforesaid case regarding continuance of
criminal case before finding by competent
court regarding validity of the disputed will, I
do not find any illegality, irregularity,
jurisdictional error or impropriety in the
impugned order passed by the trial court.
There is no merit in the criminal revision and
the same is liable to be dismissed.

16. Accordingly, the criminal revision
is dismissed.

17. Let a copy of this order be sent to
the concerned trial court for necessary action.
----------
(2024) 4 ILRA 960
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2024

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 5133 of 2023

Ashish Jaiswal ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties
4 All. Ashish Jaiswal Vs. State of U.P. & Ors.
961
Counsel for the Revisionist:
Sri Jainendra Kumar Mishra

Counsel for the Opp. Parties:
G.A., Sri Vijai Prakash Yadav

Criminal Law - Code of Criminal Procedure,
1973 - Section 125 - Against maintenance
allowance - Revisionist contended that
opposite party no.2, voluntarily residing
away from him without cause - As per
ultrasound report, she was pregnant prior
to their marriage and opposite party no.3,
was not born from their wedlock, hence
both are not entitled to maintenance -
Counsel for opposite parties submitted that
trial court passed impugned order after due
consideration of facts and law as settled by
Supreme Court and opposite party no.2,
subjected
to
dowry
harassment
by
revisionist
and
his
family,
resides
separately with her daughter at her
paternal home, receiving no maintenance -
Revisionist has not disputed paternity of
daughter
in
his
written
St.ment
or
evidence, hence, such plea cannot be
raised at revision stage - Held, revisionist
failed to disclose his actual monthly
income,
warranting
an
adverse
presumption against him - He pleaded that
opposite party no.2 filed criminal and
domestic violence cases, and that he
suffers
from
depression,
undergoing
medical treatment, preventing him from
earning - However, no doctor prescription
or bill vouchers was produced, hence, his
unsubstantiated claim cannot be accepted -
Trial court rightly held that opposite party
no.2 is legally wedded wife and opposite
party no.3 is daughter born from their
wedlock - Finding that she has no earning
to maintain herself and her minor daughter
- Revisionist is capable of earning, but has
willfully neglected to maintain them, trial
court
reasonably
awarded
monthly
maintenance allowance to them - No merit
in criminal revision, dismissed. (Para 4, 5,
24, 25, 32)

Revision dismissed. (E-13)

List of Cases cited:
1. Rajnesh Vs Neha & anr.: (2021) 2 SCC 324,
(Paras 37 to 40, 77 to 80, 109)

2. Shailja & anr. Vs Khobbanna, (2018) 12 SCC
199

3. Chander Parkash Vs Shrimati Shila Rani: 1968
SCC Online Del 52

4. Kulbhushan Kumar Vs Raj Kumari, (1970) 3
SCC 129

5.
Kalyan
Dey
Chaudhary
Vs
Rita
Dey
Chaudhary Nee Nandy, (2017) 14 SCC 200

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Jainendra Kumar Mishra,
learned counsel for the revisionist and Sri
Vijai Prakash Yadav, learned counsel for
the opposite party nos. 2 and 3.

2. By means of this instant criminal
revision, the revisionist has assailed the
impugned judgement and order dated
04.08.2023 passed by learned Additional
Principal Judge, Family Court-III, Jaunpur,
in Petition No. 666 of 2019, Jyoti Kumari
and Another Vs. Ashish Jaiswal.

3. By the impugned judgement and
order, the trial court has granted Rs.3,000/-
per month to opposite party no. 2, Jyoti
Kumari and Rs.2,000/- per month to her
minor daughter, Niyati from the date of
filing of application u/s 125 Cr.P.C. unless
they become disqualified for getting
maintenance.

4. Averment has been made by
learned counsel for the revisionist that the
trial court has passed the impugned
judgement and order against the provisions
of law and without proper appreciation of
evidence on record. It has next been
submitted that since the opposite party no.
2, Smt. Jyoti Kumari was voluntarily and
962 INDIAN LAW REPORTS ALLAHABAD SERIES
without any reason residing away from the
revisionist,
she
is
not
entitled
for
maintenance. It has also been submitted that
as per ultrasound report of opposite party no.
2, she was pregnant before her marriage with
the revisionist and opposite party no. 3,
Niyati, daughter of opposite party no. 2, was
not born from their wedlock, therefore, she is
not entitled for maintenance from him.

5. Per contra, learned counsel for the
opposite party nos. 2 and 3 has submitted that
the trial court has passed the impugned order
after considering the facts and circumstances
of the case and the statutory law applicable to
the case as interpreted by the Hon'ble Apex
Court. There is no illegality and irregularity
in the impugned order. It has next been
submitted that due to the harassment of
opposite party no. 2 by the revisionist and his
family members for obtaining additional
dowry, opposite party no. 2 is living
separately from the revisionist with her
daughter
at
her
parental
home.
No
maintenance is being provided by the
revisionist to them. The revisionist has
neither pleaded in his written statement filed
against the petition u/s 125 Cr.P.C. nor in his
evidence, oral or documentary adduced in
support of his written statement that opposite
party no. 3 is not born from his wedlock with
opposite party no. 2, Smt. Jyoti Kumari.
Therefore, at the stage of revision, such plea
cannot be entertained and they shall not be
taken into consideration.

6. Learned counsel for the revisionist
and learned counsel for the opposite party
nos. 2 and 3 have been heard. Perused the
evidence available on the record of the
revision including the impugned order
passed by the trial court.

7. From the pleadings of revisionist
and opposite party no. 2 in Petition No. 666
of 2019 u/s 125 Cr.P.C., it transpires that
admittedly opposite party no. 2, Smt. Jyoti
Kumari was married to revisionist, Ashish
Jaiswal on 18.11.2017 according to Hindu
rites and customs. The mother of opposite
party no. 2 gave sufficient cash and other
items as dowry to the revisionist according
to her status. The revisionist and his parents
were not satisfied with the dowry brought
by opposite party no. 2. They started
physically and mentally torturing her to
compel her to bring Rs.2,00,000/- as
additional dowry. On 21.08.2018, from the
wedlock of revisionist and opposite party
no. 2, a daughter, namely, Niyati was born.
On the birth of the daughter, revisionist and
his family members became annoyed with
her and on 28.08.2019, after beating,
abusing and depriving her from her
stridhan, sent her to her parental home.
Since then opposite party no. 2 is living
with her daughter at her parental home.
Opposite party no. 2 is a domestic woman
and has no skills which may enable her to
earn
enough
for
her
and
for
her
maintenance as well as of her daughter.
The husband of opposite party no. 2 is
engaged in the wholesale business of scrap
items
from
which
he
earns
about
Rs.50,000/- per month. He is not providing
maintenance to opposite party no. 2 and her
daughter. Opposite party no. 2 has prayed
for maintenance allowance of Rs.10,000/-
per month for herself and Rs.5,000/- per
month for her daughter.

8.

In
his
written
statement,
revisionist has admitted that opposite
party no. 2 is his legally wedded wife and
from their wedlock, opposite party no. 3,
Niyati was born. Revisionist has denied
that opposite party no. 2 was subjected to
physical
or
mental
harassment
for
compelling her to bring Rs.2,00,000/- or
any amount as additional dowry. The
4 All. Ashish Jaiswal Vs. State of U.P. & Ors.
963
revisionist/applicant
has
denied
the
allegations made by opposite party no. 2
against him regarding harassment of
opposite party no. 2 and after beating her,
left her at her parental home with her
daughter. The revisionist/applicant has
pleaded
that
she
herself
left
her
matrimonial home and is not willing to
stay with him. He has mentioned in his
written statement that she has filed false
case of cruelty and dowry against him
due to which he is suffering from
depression.

9. It is desirable to consider statutory
law relating to maintenance as provided u/s
125
Cr.P.C.
as
interpreted
by
the
precedents of Hon'ble Apex Court and
High Courts.

10. The provision of Section 125
Cr.P.C. provides for maintenance of wives,
children and parents. The Section 125
Cr.P.C. reads as under:-

"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 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:

Provided
further
that
the
Magistrate may, during the pendency of
the
proceeding
regarding
monthly
allowance for the maintenance under this
sub-section, order such person to make a
monthly
allowance
for
the
interim
maintenance of his wife or such child,
father or mother, and the expenses of
such proceeding which the Magistrate
considers reasonable, and to pay the same
to such person as the Magistrate may from
time to time direct:

Provided also that an application
for the monthly allowance for the interim
maintenance
and
expenses of
proceeding under the second proviso shall,
as far as possible, be disposed of within sixty
days from the date of the service of notice of
the application to such person.

Explanation.-For the purposes
of this Chapter-
964 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) "minor" means a person
who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875); is deemed
not to have attained his majority;

(b) "wife" includes a woman
who has been divorced by, or has obtained
a divorce from, her husband and has not
remarried.

(2) Any such allowance for the
maintenance or interim maintenance and
expenses of proceeding shall be payable
from the date of the order, or, if so
ordered, from the date of the application
for maintenance or interim maintenance
and expenses of proceeding, as the case
may be.

(3) If any person so ordered fails
without sufficient cause to comply with
the order, any such Magistrate may, for
every breach of the order, issue a warrant
for levying the amount due in the manner
provided for levying fines, and may
sentence such person, for the whole or
any part of each month's allowance for
the
maintenance
or
the
interim
maintenance and expenses of proceeding,
as the case may be, remaining unpaid
after the execution of the warrant, to
imprisonment for a term which may
extend to one month or until payment if
sooner made:

Provided that no warrant shall
be issued for the recovery of any amount
due under this section unless application
be made to the Court to levy such amount
within a period of one year from the date
on which it became due : Provided further
that if such person offers to maintain his
wife on condition of her living with him,
and she refuses to live with him, such
Magistrate may consider any grounds of
refusal stated by her, and may make an
order under this section notwithstanding
such offer, if he is satisfied that there is
just ground for so doing.

Explanation.-If a husband has
contracted marriage with another woman
or keeps a mistress, it shall be considered
to be a just ground for his wife's refusal to
live with him.

(4) No wife shall be entitled to
receive an allowance for the maintenance
or interim maintenance and expenses of
proceeding, as the case may be, from her
husband under this section if she is living
in adultery, or if, without any sufficient
reason, she refuses to live with her
husband, or if they are living separately by
mutual consent.

(5) On proof that any wife in
whose favour an order has been made
under this section is living in adultery, or
that without sufficient reason she refuses
to live with her husband, or that they are
living separately by mutual consent, the
Magistrate shall cancel the order."

11. In paragraph Nos. 37, 38, 39 and
40 of Rajnesh vs. Neha and Another:
(2021) 2 SCC 324, the Hon'ble Apex
Court has observed as under:-

"37. In Chaturbhuj v. Sita Bai
[Chaturbhuj v. Sita Bai, (2008) 2 SCC 316
: (2008) 1 SCC (Civ) 547 : (2008) 1 SCC
(Cri) 356] this Court held that the object
of maintenance proceedings is not to
punish a person for his past neglect, but to
prevent vagrancy and destitution of a
deserted wife by providing her food,
clothing and shelter by a speedy remedy.
Section 125 CrPC is a measure of social
justice especially enacted to protect
4 All. Ashish Jaiswal Vs. State of U.P. & Ors.
965
women and children, and falls within the
constitutional sweep of Article 15(3),
reinforced
by
Article
39
of
the
Constitution.

38. Proceedings under Section
125 CrPC are summary in nature. In
Bhuwan Mohan Singh v. Meena [Bhuwan
Mohan Singh v. Meena, (2015) 6 SCC 353
: (2015) 3 SCC (Civ) 321 : (2015) 4 SCC
(Cri) 200] this Court held that Section 125
CrPC was conceived to ameliorate the
agony, anguish, financial suffering of a
woman who had left her matrimonial
home, so that some suitable arrangements
could be made to enable her to sustain
herself and the children. Since it is the
sacrosanct duty of the husband to provide
financial support to the wife and minor
children, the husband was required to
earn money even by physical labour, if he
is able-bodied, and could not avoid his
obligation,
except
on
any
legally
permissible ground mentioned in the
statute.

39. The
issue
whether
presumption of marriage arises when
parties are in a live-in relationship for a
long period of time, which would give rise
to a claim under Section 125 CrPC came
up for consideration in Chanmuniya v.
Virendra
Kumar
Singh
Kushwaha
[Chanmuniya v. Virendra Kumar Singh
Kushwaha, (2011) 1 SCC 141 : (2011) 1
SCC (Civ) 53 : (2011) 2 SCC (Cri) 666.
This judgment was referred to a larger
Bench.] before the Supreme Court. It was
held that where a man and a woman have
cohabited for a long period of time, in the
absence of legal necessities of a valid
marriage, such a woman would be entitled
to maintenance. A man should not be
allowed to benefit from legal loopholes, by
enjoying the advantages of a de facto
marriage, without undertaking the duties
and obligations of such marriage. A broad
and expansive interpretation must be
given to the term "wife", to include even
those cases where a man and woman have
been living together as husband and wife
for a reasonably long period of time. Strict
proof of marriage should not be a
precondition for grant of maintenance
under Section 125 CrPC. The Court relied
on the Malimath Committee Report on
Reforms of Criminal Justice System
published in 2003, which recommended
that evidence regarding a man and
woman living together for a reasonably
long period, should be sufficient to draw
the presumption of marriage.

40. The law presumes in favour
of marriage, and against concubinage,
when
a
man
and
woman
cohabit
continuously for a number of years.
Unlike matrimonial proceedings where
strict proof of marriage is essential, in
proceedings under Section 125 CrPC such
strict standard of proof is not necessary.
[Kamala v. M.R. Mohan Kumar, (2019)
11 SCC 491 : (2019) 4 SCC (Civ) 732 :
(2019) 4 SCC (Cri) 242]."

12. The Hon'ble Apex Court in
paragraph Nos.77, 78, 79 and 80 of
Rajnesh vs. Neha and Another (supra)
has provided for criteria for determining
quantum of maintenance, which reads as
under:-

"77. The objective of granting
interim/permanent alimony is to ensure
that the dependent spouse is not reduced
to destitution or vagrancy on account of
the failure of the marriage, and not as a
punishment to the other spouse. There is
no straitjacket formula for fixing the
quantum of maintenance to be awarded.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

78. The factors which would
weigh with the court inter alia are the
status of the parties; reasonable needs of
the wife and dependent children; whether
the
applicant
is
educated
and
professionally
qualified;
whether
the
applicant has any independent source of
income; whether the income is sufficient
to enable her to maintain the same
standard of living as she was accustomed
to in her matrimonial home; whether the
applicant was employed prior to her
marriage; whether she was working
during the subsistence of the marriage;
whether the wife was required to sacrifice
her
employment
opportunities
for
nurturing the family, child rearing, and
looking after adult members of the family;
reasonable costs of litigation for a nonworking wife. [ Refer to Jasbir Kaur
Sehgal v. District
Judge,
Dehradun,
(1997) 7 SCC 7; Refer to Vinny Parmvir
Parmar v. Parmvir Parmar, (2011) 13
SCC 112 : (2012) 3 SCC (Civ) 290]"

79. In Manish Jain v. Akanksha
Jain [Manish Jain v. Akanksha Jain, (2017)
15 SCC 801 : (2018) 2 SCC (Civ) 712] this
Court held that the financial position of the
parents of the applicant wife, would not be
material while determining the quantum of
maintenance.
An
order
of
interim
maintenance
is
conditional
on
the
circumstance that the wife or husband who
makes a claim has no independent income,
sufficient for her or his support. It is no
answer to a claim of maintenance that the
wife is educated and could support herself.
The court must take into consideration the
status of the parties and the capacity of the
spouse to pay for her or his support.
Maintenance is dependent upon factual
situations; the court should mould the claim
for maintenance based on various factors
brought before it.

80. On the other hand, the
financial capacity of the husband, his
actual income, reasonable expenses for
his own maintenance, and dependent
family members whom he is obliged to
maintain under the law, liabilities if any,
would be required to be taken into
consideration, to arrive at the appropriate
quantum of maintenance to be paid. The
court must have due regard to the
standard of living of the husband, as well
as the spiralling inflation rates and high
costs of living. The plea of the husband
that he does not possess any source of
income ipso facto does not absolve him of
his moral duty to maintain his wife if he is
able-bodied
and
has
educational
qualifications. [Reema Salkan v. Sumer
Singh Salkan, (2019) 12 SCC 303 : (2018)
5 SCC (Civ) 596 : (2019) 4 SCC (Cri)
339]"

13. After thoroughly discussing the
numerous judgements of the Hon'ble Apex
Court and this Court, the Apex Court in
para-109 of Rajnesh vs. Neha and
Another (supra) held that maintenance
should be provided from the date of
application not from the date of order. The
para-109 of the aforesaid judgement reads
as under:-

" 109. The judgments hereinabove
reveal the divergent views of different High
Courts on the date from which maintenance
must be awarded. Even though a judicial
discretion is conferred upon the court to
grant maintenance either from the date of
application or from the date of the order in
Section
125(2)
CrPC,
it
would
be
appropriate to grant maintenance from the
date of application in all cases, including
Section 125 CrPC. In the practical working
of the provisions relating to maintenance,
we find that there is significant delay in
4 All. Ashish Jaiswal Vs. State of U.P. & Ors.
967
disposal of the applications for interim
maintenance for years on end. It would
therefore be in the interests of justice and
fair play that maintenance is awarded from
the date of the application."

14. The Hon'ble Apex Court in the
decision of Rajnesh vs. Neha and Another
(supra) has held that the husband is bound
to provide maintenance allowance to his
wife and children which may be upto 25%
of his monthly income.

15.

From
the
pleadings
and
documents filed by the parties, the trial
court has framed following four issues :-

(i) Whether applicant is legally
wedded wife of opposite party and due to
sufficient reasons, she is residing away
from her husband ?

(ii) Whether applicant is capable
of maintaining herself as well as her
daughter ?

(iii)
Whether
opposite
party
having sufficient source of income is still
not maintaining his wife and daughter ?

(iv) Whether applicants are entitled to
maintenance from opposite party ? If so,
what amount ?

16. Disposal of issue no. (i) : The
revisionist, Ashish Jaiswal in his pleading in
the written statement as well as in his oral
evidence has admitted that opposite party no.
2, Smt. Jyoti Kumari is his legally wedded
wife and from their wedlock, her daughter,
opposite party no. 3, Niyati was born.

17. While deciding the second part of
issue no. (i) that whether opposite party no.
2 is residing away from her husband
without sufficient cause, the trial court has
taken into consideration the pleadings of
opposite party no. 2, Smt. Jyoti Kumari and
revisionist, Ashish Jaiswal. The trial court
has also analysed the oral and documentary
evidence of both parties in this regard
including complaint case filed by opposite
party no. 2, Smt. Jyoti Kumari against the
revisionist Ashish Jaiswal u/s 498-A I.P.C.
and 3⁄4 of Dowry Prohibition Act and
Divorce Petition No. 1025 of 2019 u/s 13
of Hindu Marriage Act filed by the
revisionist against opposite party no. 2 in
the court of Principal Judge, Family Court,
Varanasi and came to the conclusion that
due to physical and mental harassment
caused by demand of additional dowry by
revisionist and his family members, the
opposite party no. 2 was living away from
her husband. The opposite party no. 2 had
apprehension of danger to her life and she
was justified in living away from him. The
issue no. (i) was thus, rightly decided by
the trial court in affirmative.

18. Disposal of issue nos. (ii) and (iii)
: Since these two issues are based on same
oral and documentary evidence, they are
decided together. The trial court has
considered the pleading of opposite party
no. 2 that she is a housewife and a woman
of
rural
background.
She
has
no
professional skills and she is not able to
maintain herself and her daughter from her
own earnings and she is dependent for
maintenance on her widowed mother.
Opposite party no. 2 has also pleaded that
her husband/revisionist is engaged in the
wholesale business of scrap items from
which he earns about Rs.50,000/- per
month. The opposite party no. 2 has also
pleaded that revisionist has a double-storey
dwelling house and earns rent from it. On
this point, revisionist has pleaded that his
wife, opposite party no. 2 is M.A. pass and
968 INDIAN LAW REPORTS ALLAHABAD SERIES
she is doing job in Mumbai and earning
Rs.50,000/- per month. Opposite party no.
2 has also deposed in her evidence that
since she is staying away from her
husband, her husband has sent only
Rs.5,000/- in her account and Rs.500/-
through mobile banking but as her bank
documents, aadhar card, etc. have been
detained by her husband in her matrimonial
home, she is not able to withdraw that
amount from her account. The revisionist
has not filed any documentary evidence in
support of his pleadings that opposite party
no. 2 is doing job in Mumbai and earning
Rs.50,000/- per month as salary from it.
The trial court did not believe the
averments made by either party regarding
income of both parties as neither party had
filed any documentary evidence or other
credible evidence in support of their
income. From the aforesaid evidence, the
trial court has come to the conclusion that
opposite party no. 2, Smt. Jyoti Kumari has
no earning from which she may be able to
maintain herself and her minor daughter.

19. The Hon'ble Apex Court in the
case
of
Shailja
And
Another
vs.
Khobbanna, (2018) 12 SCC 199 has held:

"we find that the High Court has
proceeded on the basis that Appellant
1/wife was capable of earning and that is
one of the reasons for reducing the
maintenance granted to her by the Family
Court. Whether Appellant 1 is capable of
earning or whether she is actually earning
are two different requirements. Merely
because Appellant 1 is capable of earning is
not, in our opinion, sufficient reason to
reduce the maintenance awarded by the
Family Court."

20. Considering the above law laid
down by the Hon'ble Apex Court merely
on the ground that opposite party no. 2 is
M.A. pass, no presumption can be drawn
that she is earning sufficient money to
maintain herself and her minor daughter.
Thus the plea advanced on behalf of the
revisionist (husband) is without any legal
basis.

21. It is well settled law that mere
averment of wife that she is not able to
maintain herself and her child from her
earning will shift the burden on her
husband to rebut that she has sufficient
income for maintenance of herself and her
child. The revisionist has not adduced any
credible oral or documentary evidence
which may rebut the averment of his wife
that she cannot maintain herself and her
daughter from her income.

22. From the oral and documentary
evidence adduced by both parties, the trial
court has concluded that the revisionist is a
healthy and young man and he is capable to
earn enough to maintain himself, his wife
and minor daughter.

23. In the case of Chander Parkash
vs. Shrimati Shila Rani: 1968 SCC
Online Del 52, the Delhi High Court has
held:

".....an able-bodied young man
has to be presumed to be capable of
earning sufficient money so as to be able
to reasonably 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."
4 All. Ashish Jaiswal Vs. State of U.P. & Ors.
969

24. In the present case, as the husband
has not clearly disclosed to the court, as he
ought, his monthly income which he
admittedly gets, the presumption would be
easily permissible against him. In his
written statement, the revisionist has
pleaded/deposed that his wife, opposite
party no. 2 has registered criminal case as
well as case under Domestic Violence Act
against
him.
He
is
suffering
from
depression and is undergoing medical
treatment
for
it,
therefore,
due
to
depression, he cannot do any work and earn
money. But the revisionist has not
produced
any
documentary
evidence
regarding prescription of doctor, bill
vouchers/receipts of medicines purchased
by him. Thus, mere bald averments of the
revisionist that he is suffering from
depression and consequently he is not able
to earn anything, cannot be accepted.

25. From the above discussion, the
trial court has rightly decided issue no.(ii)
in favour of the wife and issue no. (iii)
against the revisionist and has determined
that the revisionist is capable of earning
enough money, still he is not providing
maintenance to his wife and minor
daughter.

26. Disposal of issue no. (iv) : The
trial court has alluded in its judgement that
it is the social, moral and legal duty of a
husband to maintain his wife and children
properly. Section 125 Cr.P.C. is a social
welfare legislation which comes in the
ambit of Article 15 (3) of Constitution of
India. The statutory provision protects the
wife and children from destitution and
vagrancy. Maintenance includes expenses
required for food, clothes, residence,
medical
expenses
and
education
of
children.
The
maintenance
allowance
should be sufficient to enable the wife and
children to lead a life with dignity and
decorum equal to that they were living with
their
husband/parents.
The
wife
and
children cannot be left in a helpless and
hopeless state.

27. Taking cognizance of prevailing
wages in the labour market, even an
unskilled labourer earns about Rs.500/- per
day, thus it can be presumed that revisionist
may be earning about Rs.15,000/- per
month from his wages.

28. Now, this Court has to consider
whether the trial court has rightly provided
Rs.3,000/- per month to Smt. Jyoti Kumari
and Rs.2,000/- per month to her daughter,
Niyati ?

29. The Hon'ble Apex Court in
Kulbhushan Kumar Vs. Raj Kumari,
(1970) 3 SCC 129 has held that 25% of the
husband's net salary would be just and
proper to be awarded as maintenance
allowance to the wife. The amount of
permanent alimony awarded to the wife
must be befitting the status of the parties
and the capacity of the spouse to pay
maintenance.

30. In Kalyan Dey Chaudhary Vs.
Rita Dey Chaudhary Nee Nandy, (2017)
14 SCC 200, the Hon'ble Apex Court has
followed the quantum of maintenance fixed
by the Hon'ble Apex Court in Kulbhushan
Kumar (supra) that 25% of net income of
the husband should be paid to the wife as
maintenance.

31. Thus, it will be just and
reasonable to provide 1/3rd of the monthly
income of the husband for maintenance of
revisionist's wife/opposite party no. 2 and
his daughter, opposite party no. 3. Thus, the
amount of total maintenance to be provided
970 INDIAN LAW REPORTS ALLAHABAD SERIES
to opposite party nos. 2 and 3 can be
determined as 1/3rd of Rs.15,000/- i.e.
Rs.5,000/-. In the impugned judgement and
order, considering all the facts and
circumstances and evidence on record, the
trial court has also granted Rs.3,000/- to
opposite party no. 2 and Rs.2,000/- to
opposite party no. 3.

32. From the above discussion, I am
of the view that the trial court has rightly
concluded that opposite party no. 2 is
legally wedded wife of revisionist and
opposite party no. 3 is the daughter born
from their wedlock. The trial court has
rightly concluded that opposite party no. 2
has no earning to maintain herself and her
minor daughter. The revisionist is capable
of earning sufficient income to maintain his
wife and minor daughter, still he is
neglecting in maintaining them. The trial
court has provided just and reasonable
monthly
maintenance
allowance
for
opposite party nos. 2 and 3 i.e. wife and
daughter of the revisionist.

33. There is no merit in the criminal
revision and the same is liable to be
dismissed.

34.

The
criminal
revision
is
accordingly, dismissed.

35. Let a copy of this order be sent to
the concerned trial court for necessary
action.
----------
(2024) 4 ILRA 970
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.
First Appeal No. 245 of 2024

Richa Mumgaie ...Appellant
Versus
Harendra Prasad ...Respondents

Counsel for the Appellant:
Sri Ritesh Srivastava, Ms. Shweta Singh, Sri
Abhishek Yadav

Counsel for the Respondents:

Civil Law - Hindu Marriage Act, 1955 -
Section 23 (1) (b) - Civil Procedure Code,
1908 - Order VII Rule 11(d) - Impugned
order
dismisses
appellant-wife's
application under O.VII R.11(d) CPC read
with Section 23(1)(b) of Hindu Marriage
Act, holding that as divorce petition filed
on grounds of cruelty and adultery is at
stage of DW-1's cross-examination and
matter is expedited, such application
can't be entertained - Held, a plain
reading of plaint shows a cause of action
is made out - Paragraphs 9 -11 and
subsequent averments detail the wife's
repeated
misconduct
after
initial
condonation, including specific instances
of adultery - Single condonation of any
act does not reject the plaint where such
acts are alleged to have been repeated -
Condonation
u/s
23(1)(b)
of
Hindu
Marriage Act is conditional, presuming
forgiven acts will not repeated - Where
plaint specifically alleges repetition of
such
acts
after
initial
condonation,
Section 23(1)(b) cannot bar claim, and
plaint cannot be rejected under O.VII
R.11(d)
CPC
on
ground
of
prior
condonation - Court used words "coupled
with" shows application under O.VII R.11
CPC read with Section 23(1)(b) Hindu
Marriage Act was not rejected for that
sole
reason,
and
contention
is
misconceived - Appeal is devoid of
merits and accordingly dismissed. (Para
3, 9, 13, 16)

Appeal dismissed. (E-13)

List of Cases cited: