# Matapher Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 4 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-04
- **Case number:** Criminal Revision No. 3032 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matapher-revisionist-v-state-of-u-p-anr-opp-parties-51869
- **Pages:** 8

## Headnote

Criminal Law - Code of Criminal Procedure,
1973 - Sections 125, 127 & 397 - Indian
Evidence Act, 1872 - Section 114 - Revisionist
challenged orders dated 10.12.2019 granting Rs.
7,000/- monthly maintenance to opposite party no.
2 (wife) under Section 125 Cr.P.C. and dated
07.12.2022 rejecting his application under Section
127 Cr.P.C. for modification, alleging non-marital
status and no liability for maintenance. Court held:
(1) Trial court correctly established marital status
based on oral testimony of wife, her brother, and
revisionist's
brother,
corroborated
by
public
documents
(Aadhar
card,
family
register,
educational certificates) showing revisionist as
husband
and
father,
with
presumption
of
genuineness under Section 114 of Indian Evidence
Act (Anju Garg Vs Deepak Kumar Garg, 2022 SCC
OnLine SC 1314). (2) Revisionist's claim of nonmarriage and forged documents was unsupported,
as he filed no FIR or complaint against alleged
forgery, weakening his defence. (3) Maintenance
of Rs. 7,000/-, based on revisionist's pension of Rs.
34,656/-, was reasonable and below 25% of net
income as per precedent, even excluding disputed
agricultural income (Kulbhushan Kumar Vs Raj
Kumari, (1970) 3 SCC 129). (4) Rejection of
Section 127 Cr.P.C. application was justified, as
revisionist's claim of no agricultural income did not
alter his financial capacity to pay; wife's alleged
cultivation income was irrelevant to his obligation
(Rajnesh Vs Neha, (2021) 2 SCC 324). (5) Section
125 Cr.P.C., a social legislation, aims to prevent
destitution, and trial court's summary findings on
marital status and financial need were sound
(Chander Parkash Bodh Raj Vs Shila Rani Chander
Prakash, 1968 SCC OnLine Del 52). Impugned
orders
upheld;
maintenance
payable
from
application date, with arrears in four instalments
within six months. (Paras 8-24)

Criminal Revision Dismissed.

List of Cases cited:

## Text

912 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 4 ILRA 912
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2024

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 3032 of 2023

Matapher ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Praveen Kumar Tripathi, Sri Krishna
Tripathi

Counsel for the Opp. Parties:
G.A., Sri Jitendra Kumar Pandey, Sri Pankaj
Dwivedi

Criminal Law - Code of Criminal Procedure,
1973 - Sections 125, 127 & 397 - Indian
Evidence Act, 1872 - Section 114 - Revisionist
challenged orders dated 10.12.2019 granting Rs.
7,000/- monthly maintenance to opposite party no.
2 (wife) under Section 125 Cr.P.C. and dated
07.12.2022 rejecting his application under Section
127 Cr.P.C. for modification, alleging non-marital
status and no liability for maintenance. Court held:
(1) Trial court correctly established marital status
based on oral testimony of wife, her brother, and
revisionist's
brother,
corroborated
by
public
documents
(Aadhar
card,
family
register,
educational certificates) showing revisionist as
husband
and
father,
with
presumption
of
genuineness under Section 114 of Indian Evidence
Act (Anju Garg Vs Deepak Kumar Garg, 2022 SCC
OnLine SC 1314). (2) Revisionist's claim of nonmarriage and forged documents was unsupported,
as he filed no FIR or complaint against alleged
forgery, weakening his defence. (3) Maintenance
of Rs. 7,000/-, based on revisionist's pension of Rs.
34,656/-, was reasonable and below 25% of net
income as per precedent, even excluding disputed
agricultural income (Kulbhushan Kumar Vs Raj
Kumari, (1970) 3 SCC 129). (4) Rejection of
Section 127 Cr.P.C. application was justified, as
revisionist's claim of no agricultural income did not
alter his financial capacity to pay; wife's alleged
cultivation income was irrelevant to his obligation
(Rajnesh Vs Neha, (2021) 2 SCC 324). (5) Section
125 Cr.P.C., a social legislation, aims to prevent
destitution, and trial court's summary findings on
marital status and financial need were sound
(Chander Parkash Bodh Raj Vs Shila Rani Chander
Prakash, 1968 SCC OnLine Del 52). Impugned
orders
upheld;
maintenance
payable
from
application date, with arrears in four instalments
within six months. (Paras 8-24)

Criminal Revision Dismissed.

List of Cases cited:

1. Anju Garg Vs Deepak Kumar Garg, 2022 SCC
OnLine SC 1314 (Para 15)

2. Bhuwan Mohan Singh Vs Meena, (2015) 6
SCC 353 (Para 15)

3. Dukhtar Jahan Vs Mohd. Farooq, (1987) 1
SCC 624 (Para 15)

4. Vimala (K.) Vs Veeraswamy (K.), (1991) 2
SCC 375 (Para 15)

5. Kirtikant D. Vadodaria Vs St. of Guj., (1996) 4
SCC 479 (Para 15)

6. Chaturbhuj Vs Sita Bai, (2008) 2 SCC 316
(Para 15)

7. Capt. Ramesh Chander Kaushal Vs Veena
Kaushal, (1978) 4 SCC 70 (Para 15)

8. Savitaben Somabhai Bhatiya Vs St. of Guj.,
(2005) 3 SCC 636 (Para 15)

9. Nagendrappa Natikar Vs Neelamma, (2014)
14 SCC 452 (Para 15)

10. Chander Parkash Bodh Raj Vs Shila Rani
Chander Prakash, 1968 SCC OnLine Del 52
(Para 16)

11. Rajnesh Vs Neha, (2021) 2 SCC 324 (Para
17)

12. Kulbhushan Kumar Vs Raj Kumari, (1970) 3
SCC 129 (Para 19)
4 All. Matapher Vs. State of U.P. & Anr.
913
13. Kalyan Dey Chaudhary Vs Rita Dey
Chaudhary Nee Nandy, (2017) 14 SCC 200
(Para 20)

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

Heard Sri Praveen Kumar Tripathi,
learned counsel for the revisionist and Sri
Pankaj Dwivedi, learned counsel for the
opposite party no. 2.

2. By means of this criminal revision,
the revisionist has challenged the impugned
order dated 10.12.2019 passed by learned
Additional Principal Judge, IIIrd, Family
Court, Allahabad in Maintenance Case No.
506 of 2015, Smt. Durga Devi Vs.
Matapher filed u/s 125 Cr.P.C. and
impugned judgement and order dated
07.12.2022 passed by learned Additional
Principal
Judge,
Family
Court-
2,
Allahabad in Misc. Case No. 02 of 2020
(Matapher Vs. Durga Devi) instituted u/s
127 Cr.P.C.

3. By the impugned judgement and
order dated 10.12.2019, the Additional
Principal Judge, IIIrd, Family Court,
Allahabad had allowed the application filed
u/s 125 Cr.P.C. and granted maintenance of
Rs.7,000/- per month to opposite party no.
2, Smt. Durga Devi.

4. By the impugned judgement and
order dated 07.12.2022, the Additional
Principal
Judge,
Family
Court-
2,
Allahabad, had rejected application u/s 127
Cr.P.C. filed by the revisionist, Matapher.

5. Averment has been made by
learned counsel for the revisionist that in
the trial court, arguments were made on
behalf of the revisionist that opposite party
no. 2, Smt. Durga Devi was not his legally
wedded wife and her both children,
namely, Akansha and Alok were not his
children. He had requested the trial court
for DNA test but the trial court did not pass
any order on his application for DNA test.
It has also been submitted that the trial
court without application of judicial mind
to the facts and circumstances of the case
and the evidence on record, passed the
impugned order dated 10.12.2019 and
07.12.2022 and allowed the application of
opposite party no. 2 u/s 125 Cr.P.C. and
rejected the application u/s 127 Cr.P.C.
filed by the revisionist respectively. The
aforesaid orders were illegally passed by
the court against the provisions of law
merely based on surmises and conjectures.
Therefore, they are liable to be set-aside. It
has also been submitted that revisionist's
marriage was not solemnized with the
opposite party no. 2, Smt. Durga Devi and
the children of opposite party no. 2 are not
born out of their wedlock. It has also been
submitted that opposite party no. 2, Smt.
Durga Devi is cultivating his farm and
taking the income arising out of selling of
crops. Her son has also been settled and her
daughter has been married. Therefore, the
trial court has provided maintenance
allowance to the opposite party no. 2
without any justification. It has also been
submitted that the revisionist left his village
for his education in his childhood. After
completing
education,
he
came
into
government service and solemnized his
marriage with Gayatri Devi. Two sons,
namely, Saurav Pathak and Ashutosh
Pathak were born out of their wedlock. In
the year 2013, he retired from the
government job. Since then he is residing
in Allahabad along with his wife and
children. His brother, Vansh Raj kept
opposite party no. 2, Smt. Durga Devi and
is residing in the village with her. In the
year 2013, his son Saurav Pathak died. On
that occasion, his brother Vansh Raj visited
his house. He threatened the revisionist not
914 INDIAN LAW REPORTS ALLAHABAD SERIES
to move towards the agricultural land
otherwise he will face dire consequences. It
has also been submitted that on 03.11.2016,
opposite party no. 2, Smt. Durga Devi
lodged Case Crime No. 797 of 2016 u/s
420, 467, 468, 469, 471 I.P.C. in Police
Station- Dhoomanganj, District- Allahabad,
against the revisionist in collusion with his
brother, Vansh Raj. She has also filed
complaint case on 17.12.2015 u/s 12 of the
Domestic Violence Act against him. His
brother, Vansh Raj has illegally occupied
the share of the revisionist in his parental
agricultural land. It has also been submitted
that the revisionist filed objection against
the application u/s 125 Cr.P.C. and
produced
his
oral
and
documentary
evidence. He had filed application u/s 127
Cr.P.C. for alteration of maintenance
allowance granted by the court concerned
vide order dated 10.12.2019. The court
concerned illegally allowed the application
filed u/s 125 Cr.P.C. by the opposite party
no. 2, Smt. Durga Devi and rejected the
application of the revisionist filed u/s 127
Cr.P.C. It has also been submitted that the
revisionist is 79 years old and suffering
from old-age related diseases for which he
is
undergoing
treatment
at
Medanta
Hospital, Lucknow. It has also been
submitted on behalf of the revisionist that
he had filed application u/s 127 Cr.P.C. for
modification of the maintenance allowance
granted in favour of opposite party no. 2 by
the trial court. The application was filed on
the ground that the trial court while
granting maintenance allowance u/s 125
Cr.P.C.
had
not
only
taken
into
consideration his monthly pension of
Rs.34,656/- but also included in it income
from agricultural land and had fixed the
total monthly income as Rs.40,000/- per
month. The trial court on the basis of his
monthly income of Rs.40,000/- had granted
Rs.7,000/- per month as maintenance
allowance to opposite party no. 2 whereas
he is not in possession of the agricultural
land and he is not getting any income from
the crops grown on it. The cultivation of
their agricultural land is being done by
opposite party no. 2 and she is utilizing the
income by selling the crops grown on it but
the
trial
court
while
rejecting
his
application u/s 127 Cr.P.C. did not consider
his pleadings in this regard.

6. Per contra, learned counsel for the
opposite party no. 2 has opposed the
criminal revision and has submitted that the
trial court passed the impugned order in the
case u/s 125 Cr.P.C. as well as 127 Cr.P.C.
on the basis of the evidence available on
the record and considering the statutory
provisions of the law allowed by the
Hon'ble Apex Court under the law
applicable to it. It has also been submitted
that while passing the aforesaid impugned
order, the trial court had taken into
consideration both the oral as well as
documentary evidence produced by the
revisionist. There is no illegality or
irregularity in the impugned orders and no
interference by the revisional court is
warranted.

7. Learned counsel for the revisionist
and learned counsel for the opposite party
no. 2 have been heard. Perused the
evidence available on the record of the
revisional court including the impugned
orders passed by the Additional Principal
Judge, IIIrd, Family Court, Allahabad and
Additional Principal Judge, Family Court-
2, Allahabad.

8. The trial court in its impugned
judgement and order dated 10.12.2019 has
considered the averments made by the
applicant, P.W.1 Smt. Durga Devi in her
application u/s 125 Cr.P.C. as well as her
4 All. Matapher Vs. State of U.P. & Anr.
915
oral evidence and oral evidence of
revisionist's brother, P.W.2 Vansh Raj and
brother of opposite party no. 2, P.W.3 Ram
Dular Dubey in detail. The trial court has
also discussed the documentary evidence
filed by the opposite party no. 2 in the case
u/s 125 Cr.P.C.

9. The opposite party no. 2, Smt.
Durga Devi had pleaded in her application
u/s 125 Cr.P.C. that her marriage was
solemnized in 1972 according to Hindu
rites and customs with the revisionist
Matapher. About 9-10 years after the
marriage, a daughter, namely, Akansha and
in the year 1992, a son, namely, Alok, were
born from their wedlock. After the birth of
their son in 1992, the revisionist left
opposite party no. 2. He was working as
Senior Marketing Officer in Regional Food
Corporation and staying in the city. He
started living with Gayatri Devi. In the year
2001, he finally refused to keep opposite
party no. 2, Smt. Durga Devi with him. The
opposite party no. 2, Smt. Durga Devi is a
purdahnasheen lady of rural background.
She is living in her matrimonial home with
her son. Whereas revisionist in his written
statement had denied that opposite party
no. 2, Smt. Durga Devi is his legally
weddded wife and Akansha and Alok are
his children. He has submitted that he got
government job in the year 1981 and
married Gayatri Devi. From that marriage,
two sons were born. His elder son died in
the year 2014 and opposite party no. 2,
Smt. Durga Devi in conspiracy with his
brother Vansh Raj to grab his land illegally,
has prepared forged document and filed a
false case for maintenance.

10. P.W.1 Smt. Durga Devi in her
evidence had supported the averments
made by her in her pleadings. In her crossexamination,
she
had
given
details
regarding her father-in-law, mother-in-law,
husband and brother-in-law as well as
farming in her matrimonial home. She had
deposed that she was living with her
children in the village of the revisionist.
The revisionist's elder brother, P.W.2
Vansh Raj Pathak has supported the
averments made in the application u/s 125
Cr.P.C. as well as the deposition of P.W.1
Smt. Durga Devi. He has stated in his
evidence that Smt. Durga Devi was married
to his brother Matapher in 1972 and
presently, she is living in her husband's
parental house with her children. He has
also deposed that his brother is living with
a lady, namely, Gayatri Devi from whose
relationship, he has two children. Through
forgery, his brother has incorporated the
name of Gayatri Devi in his service record.
His brother was not married to Gayatri
Devi.

11. P.W.3 Ram Dulare Dubey had
also corroborated the evidence of P.W.1
Smt. Durga Devi and P.W.2 Vansh Raj
Pathak regarding the marriage of Smt.
Durga Devi with Matapher and from their
marriage, birth of two children. In the
cross-examination of P.W.1, P.W.2 and
P.W.3, nothing is found which may raise
doubt about the veracity of their deposition.
Apart from aforesaid oral evidence, the trial
court has also taken into consideration the
deposition of D.W.1 Matapher and the
documentary evidence filed by the opposite
party no. 2, Smt. Durga Devi. No
documentary evidence was filed by the
revisionist in the trial court. In the
documentary evidence paper no. 5 Kha/2,
which is the aadhar card of Smt. Durga
Devi, name of her husband is registered as
M. Pathak. In paper no. 5 Kha/3 which is
family register of village- Barasata Kalan,
the revisionist Matapher is recorded as the
head of the family and Smt. Durga Devi is
916 INDIAN LAW REPORTS ALLAHABAD SERIES
shown as his wife and Akansha and Alok
as their daughter and son respectively. The
other document filed by opposite party no.
2 in the trial court paper no. 20 Kha/2 is
marksheet of High School examination,
2006 of Alok Kumar Pathak which has
been issued by U.P. Board of High School
and Intermediate Education in the year
2006 in which Smt. Durga Devi and
Matapher are recorded as mother and father
of Alok Kumar. The year of birth of Alok
Kumar is recorded as 1992. The opposite
party no. 2 had also filed the certificate of
Intermediate and marksheet of Intermediate
Examination, 2008 of Alok Kumar paper
no. 20 Kha/4 and 20 Kha/5. In these
documents also, his parents name is shown
as Smt. Durga Devi and Matapher.
Similarly, in the certificate of High School
Examination,
2000
and
Intermediate
Examination, 2002 paper no. 20 Kha/6 and
20 Kha/7 of Kumari Akansha Pathak, Smt.
Durga Devi and Matapher are shown as her
mother and father respectively. Her date of
birth is recorded as 1984. In paper no. 20
Kha/8
which
is
Akansha
Pathak's
marksheet of 2012 of Sampurnanand
Sanskrit Vidyalaya, Smt. Durga Devi and
Matapher are shown as her parents. These
documents were issued before opposite
party no. 2, Smt. Durga Devi filed her
application u/s 125 Cr.P.C. for maintenance
allowance against the revisionist Matapher.
These documents corroborate the pleadings
and deposition of opposite party no. 2 and
her witnesses that the daughter was born 910 years after their marriage which was
solemnized in the year 1972 as her year of
birth is shown of the year 1984 and also the
year of birth of their son, Alok Kumar
Pathak is shown of the year 1992. The trial
court has also examined the identity card of
Smt. Durga Devi paper no. 20 Kha/11 in
which her husband's name is recorded as
Matapher. Similarly, in the ration card,
paper no. 20 Kha/12, Matapher is shown as
the husband of Smt. Durga Devi and Alok
Kumar Pathak as their son. Aforesaid
papers filed by opposite party no. 2 are two
public
documents
and
under
Indian
Evidence Act, there is presumption of
genuineness of the entries made in them.

12. D.W.1 Matapher has admitted in
his deposition that after opposite party no.
2 filed these documents in her case u/s 125
Cr.P.C., in the year 2015, he came to know
about them. He has admitted that he has not
filed any first information report before
police authority or complaint before any
public authority in regard to the alleged
forged documents. He has also admitted
that he did not file any case in the Court.

13. From the deposition of D.W.1
Matapher, the trial court has concluded that
in case, he had considered the documents
forged, he would have definitely filed first
information report or made complaint
before police/public authorities and drawn
inference that the documents are genuine.
The trial court has also taken the fact into
consideration that in the service record of
revisionist, Matapher Pathak, the name of
Gayatri Devi is mentioned as his wife. The
name of Smt. Durga Devi is not mentioned
in the column of wife. The trial court has
also considered the documentary evidence
filed by the revisionist, namely, medical
prescription of the treatment of Gayatri
Devi in which her husband's name is
shown as Matapher. The trial court has
rightly concluded that since revisionist,
Matapher has not produced any oral
evidence
or
documentary
evidence
regarding his marriage to Gayatri Devi and
there is reliable evidence filed by opposite
party no. 2, Smt. Durga Devi about her
marriage with Matapher and birth of
Akansha and Alok born from their
4 All. Matapher Vs. State of U.P. & Anr.
917
wedlock, the aforesaid entries of service
book and medical papers of Gayatri Devi,
cannot
be
relied
upon.
It
merely
corroborates the pleading and evidence of
Smt. Durga Devi that sometime after birth
of both the children, revisionist finally left
her in the year 2001 and did not visit her
anytime nor provided any maintenance to
her.

14. The proceeding u/s 125 Cr.P.C. is
summary in nature in which only prima
facie it has to be seen that the applicant is
the wife of opposite party. It is a social
legislation enacted for protecting the wife,
minor children and parents of a person
from vagrancy and destitution.

15. In paragraph no. 9 of its
judgement in Anju Garg and Another Vs.
Deepak Kumar Garg, 2022 SCC Online
SC 1314, the Apex Court has mentioned
the purpose of Section 125 Cr.P.C. which is
as follows :

9. .........it may be noted that
Section 125 of Cr.P.C. was conceived to
ameliorate
the
agony,
anguish
and
financial suffering of a woman who is
required to leave the matrimonial home,
so that some suitable arrangements could
be made to enable her to sustain herself
and the children, as observed by this
Court in Bhuwan Mohan Singh v. Meena.
This Court in the said case, after referring
to the earlier decisions, has reiterated the
principle of law as to how the proceedings
under Section 125 Cr.P.C have to be dealt
with by the Court. It held as under:

"In Dukhtar Jahan v. Mohd.
Farooq [(1987) 1 SCC 624 : 1987 SCC
(Cri) 237] the Court opined that : (SCC p.
631, para 16)

16. "...
Proceedings
under
Section 125 [of the Code], it must be
remembered, are of a summary nature
and are intended to enable destitute wives
and children, the latter whether they are
legitimate
or
illegitimate,
to
get
maintenance in a speedy manner."

8.
A
three-Judge
Bench
in Vimala (K.) v. Veeraswamy (K.) [(1991)
2 SCC 375 : 1991 SCC (Cri) 442], while
discussing about the basic purpose under
Section 125 of the Code, opined that :
(SCC p. 378, para 3)

3. "Section 125 of the Code of
Criminal Procedure 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."

9.
A
two-Judge
Bench
in Kirtikant
D.
Vadodaria v. State
of
Gujarat [(1996) 4 SCC 479 : 1996 SCC
(Cri)
762],
while
adverting
to
the
dominant purpose behind Section 125 of
the Code, ruled that : (SCC p. 489, para
15)

15. "... 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 destitution 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."
918 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In Chaturbhuj v. Sita Bai
[(2008) 2 SCC 316 : (2008) 1 SCC (Civ)
547 : (2008) 1 SCC (Cri) 356], reiterating
the legal position the Court held : (SCC p.
320, para 6)

6. "... Section 125 CrPC is a
measure of social justice and is specially
enacted to protect women and children
and as noted by this Court inCapt.
Ramesh Chander Kaushal v. Veena
Kaushal [(1978) 4 SCC 70 : 1978 SCC
(Cri) 508] 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 : 2005 SCC
(Cri) 787]."

11.
Recently
in Nagendrappa
Natikar v. Neelamma [(2014)
14
SCC
452 : (2015) 1 SCC (Cri) 407 : (2015) 1
SCC (Civ) 346], it has been stated that it is
a piece of social legislation which provides
for a summary and speedy relief by way of
maintenance to a wife who is unable to
maintain herself and her children".

16. In the case of Chander Parkash
Bodh Raj vs. Shila Rani Chander
Prakash: 1968 SCC Online Del 52, the
Delhi High Court has held that :

"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."

17. The Hon'ble Apex Court in
Rajnesh vs. Neha (supra) has approved
the above law laid down by the Delhi High
Court.

18. From the above analysis, I am of
the opinion that the trial court has rightly
concluded that opposite party no. 2 is the
legally
wedded
wife
of
revisionist,
Matapher.
As
far
as
quantum
of
maintenance determined by the trial court
as Rs.7,000/- per month payable to the
opposite party no. 2, Smt. Durga Devi, the
monthly income of revisionist should be
taken into consideration. The revisionist
had admitted in his pleadings as well as
deposition that he retired in the year 2013
and is getting Rs.34,656/- as monthly
pension.

19. 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 financial capacity of the husband to
make the payment.

20. 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
4 All. Shiv Mohan & Anr. Vs. State of U.P. & Anr.
919
Kumar (supra) that 25% of net income of
the husband should be paid to the wife as
maintenance.

21. The trial court has added
Rs.5,344/- as agricultural income into the
amount of monthly pension of Rs.34,656/-
of the revisionist Matapher and has taken
his monthly income as Rs.40,000/-. The
objection of revisionist is that he is neither
in the possession nor drawing any income
from the agricultural land. Even if the
income from agricultural land is excluded,
admittedly
revisionist
is
earning
Rs.34,656/- as monthly pension.

22. Applying the law laid down by
the Hon'ble Apex Court, 25% of monthly
pension will be Rs.8,664/- whereas the trial
court has granted Rs.7,000/- per month as
monthly maintenance allowance to the
opposite party no. 2, Smt. Durga Devi.
Therefore, the maintenance allowance
granted to the opposite party no. 2 cannot
be considered as excessive vis-a-vis the
monthly pension of the revisionist rather it
is on the lower side. Therefore, the trial
court has rightly rejected his application
filed u/s 127 Cr.P.C. for reduction in the
maintenance allowance on the ground that
he is not drawing any income from the
agricultural land.

23. From the above discussion, I am
of the view that there is no illegality,
irregularity, or jurisdictional error in the
impugned orders dated 10.12.2019 and
07.12.2022 passed by the trial court. There
is no merit in the criminal revision and is
liable to be dismissed.

24.

The
monthly
maintenance
allowance provided by the trial court of
Rs.7,000/- shall be payable to the opposite
party no. 2, Smt. Durga Devi from the date
of her filing application u/s 125 Cr.P.C.
which shall be payable till 10th of each
calendar
month.
The
arrears
of
maintenance allowance shall be paid by the
revisionist in four equal amounts within a
period of six months. The amount of
maintenance allowance already paid to the
opposite party no. 2 shall be set off against
this amount.

25. The present criminal revision is
dismissed in terms of above mentioned
conditions.

26. The copy of the order be sent to
the trial court concerned forthwith for
necessary compliance.
----------
(2024) 4 ILRA 919
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.03.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 3102 of 2023

Shiv Mohan & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Phool Singh Yadav, Sri Vaibhav Yadav

Counsel for the Opp. Parties:
G.A., Sri Ashutosh Mishra, Sri Yashdeep
Rastogi

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 311 & 397 -
Indian Penal Code, 1860 - Sections 323,
504 & 304 - Indian Evidence Act, 1872 -
Section 138 - Revisionists challenged order
dated 11.05.2023 rejecting their application
under Section 311 Cr.P.C. to recall P.W.1 Balwant
Singh for cross-examination in a trial for