# Naveen Agrawal Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-25
- **Case number:** Criminal Revision No. 3036 of 2021
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naveen-agrawal-revisionist-v-state-of-u-p-ors-46483
- **Pages:** 11

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 397/401 & 125 -
Order for maintenance of wifes , children and
parents , The Code of criminal procedure, 1898
- Section 488 - Order of maintenance of wife &
children - Constitution of India - Article 15(3) -
maintenance in all cases will be awarded from
the date of the filing of the application for
maintenance.(Para - 37)

Order passed by Additional Family Judge/Family Court
under challenge - maintenance awarded to opposite
party nos.2 and 3 in the proceedings under Section
125 Cr.P.C. - opposite party no.2 solemnized marriage
with the revisionist - demand of dowry of 4 lakhs -
applications for maintenance allowed in part -
opposite party nos. 2 and 3 claimed maintenance of
Rs.30,000/- from revisionist - court below awarded
maintenance to opposite party no.2 to the tune of
Rs.4000/- and Rs.3000/- to the minor son of
revisionist. - hence revision.

HELD:-Sufficient material on record to show that
determination so done by court below while awarding
Rs.4000/-per month as maintenance to the wife and
Rs.3000/- towards maintenance of the minor son per
month is not excessive. Findings recorded by the
court below cannot be said to be perverse, as onus to
prove that the findings are perverse is upon the
revisionist and once the revisionist has not assailed
the said findings seriously the order cannot be said to
be suffering from manifest illegality. No manifest
illegality by court below in the order passed by the
court of Additional Family Judge/Family Court, in the
proceedings under Section 125 Cr.P.C. .(Para -
33,38,40 )

Criminal Revision dismissed. (E-7)

List of Cases cited:-

## Text

11 All. Naveen Agrawal Vs. State of U.P. & Ors.
197
sufficient material available on record to suggest
that the applicant had also indulged in
criminality. Accordingly, on 20.11.2020 an
application was preferred by the opposite party
no. 2 which came into light in exercise of power
contained u/s 319 Cr.P.C. while summoning the
applicant, Raja Ram and Layak Ram.

21. Learned counsel for the revisionist had
argued that there is no material available on
record so as to implicate the revisionist in the
said
criminality.
Elaborating
the
said
submission,
the
learned
counsel for
the
revisionist has further argued that there was no
material available before the court below for
exercising powers u/s 319 Cr.P.C.

22. The learned A.G.A. has drawn the
attention of this Court towards the statement of
opposite party no. 2 recorded u/s 164 Cr.P.C. so
as to contend that specifically the name of the
revisionist has been taken during the course of
recording
of
the
statement
regarding
commissioning of the offence by the revisionist.

23. I have carefully gone through the
records of the present case and I find that the
name of the revisionist has been specifically
taken by the opposite party no. 2 in the
statement recorded u/s 164 Cr.P.C. The
Magistrate has considered each and every aspect
of the matter and also analysed the import and
the impact of the statement recorded u/s 164
Cr.P.C. of the opposite party no. 2.

24. Needless to point out that this Court
under revisional jurisdiction cannot substitute its
own views particularly when there was ample
evidence available on record before the court
below in exercising the jurisdiction as conferred
u/s 319 Cr.P.C.

25. Nonetheless, on a pointed query being
raised before the learned counsel for the
revisionist to point out any perversity committed
by the court below or any jurisdictional error,
the learned counsel for the revisionist only
argued this much that he has not committed any
offence and he has been falsely implicated in the
present case.

26. The counsel for the revisionist has
argued on the factual score that too without any
basis. This Court is of the firm opinion that there
exist sufficient material available with the court
below for invoking the provisions contained u/s
319 Cr.P.C.

27. Learned counsel for the revisionist has
not disputed the legal proposition of law so
culled out by the Hon'ble Apex Court in relation
to the scope and the ambit of the powers u/s 319
Cr.P.C. Further the learned counsel for the
revisionist has also not been able to place on
record any material to show the findings
recorded by the court below while summoning
the revisionist suffers, from perversity or
manifest illegality.

28. Resultantly, the present revision is
wholly misconceived and is liable to be
dismissed.

29. No order as to costs.
----------

(2021)12ILR A197
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 3036 of 2021

Naveen Agrawal ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
198 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Gyan Prakash Shrivastava, Sri Shrinath
Dwivedi

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 397/401 & 125 -
Order for maintenance of wifes , children and
parents , The Code of criminal procedure, 1898
- Section 488 - Order of maintenance of wife &
children - Constitution of India - Article 15(3) -
maintenance in all cases will be awarded from
the date of the filing of the application for
maintenance.(Para - 37)

Order passed by Additional Family Judge/Family Court
under challenge - maintenance awarded to opposite
party nos.2 and 3 in the proceedings under Section
125 Cr.P.C. - opposite party no.2 solemnized marriage
with the revisionist - demand of dowry of 4 lakhs -
applications for maintenance allowed in part -
opposite party nos. 2 and 3 claimed maintenance of
Rs.30,000/- from revisionist - court below awarded
maintenance to opposite party no.2 to the tune of
Rs.4000/- and Rs.3000/- to the minor son of
revisionist. - hence revision.

HELD:-Sufficient material on record to show that
determination so done by court below while awarding
Rs.4000/-per month as maintenance to the wife and
Rs.3000/- towards maintenance of the minor son per
month is not excessive. Findings recorded by the
court below cannot be said to be perverse, as onus to
prove that the findings are perverse is upon the
revisionist and once the revisionist has not assailed
the said findings seriously the order cannot be said to
be suffering from manifest illegality. No manifest
illegality by court below in the order passed by the
court of Additional Family Judge/Family Court, in the
proceedings under Section 125 Cr.P.C. .(Para -
33,38,40 )

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Captain Ramesh Chander Kaushal Vs Mrs. Veena
Kaushal & ors. , (1978) 4 SCC 70

2. Shri Bhagwan Dutt Vs Smt. Kamla Devi & anr. ,
(1975) 2 SCC 386
3. Chaturbhuj Vs Sita Bai ,(2008) 2 SCC 316

4. Chanmuniya Vs Virendra Kumar Singh Kushwaha &
anr., (2011) 1 SCC 141

5. Kamla & ors. Vs M.R. Mohan Kumar , (2019) 11
SCC 491

6. Rajneesh Vs Neha, Criminal Appeal No.730 of 2020

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Srinath Dwivedi, learned counsel
for the revisionist as well as learned AGA, who
appears for the opposite party no.1 (State of
U.P.). In view of the order proposed to be
passed, there is no necessity to issue notices to
opposite parties no. 2 and 3.

2. Challenge in the present revision
purported to be under Section 397 read with
Section 401 Cr.P.C., 1973 is to the order dated
12.8.2021 passed by the court of learned
Additional Family Judge/Family Court, Court
No.1, Kanpur Nagar in the proceedings under
Section 125 Cr.P.C. having Case No.460/2019,
(CNRI-UPKN0200164/2019, Smt. Shalini and
others Vs. Navin Agarwal whereby maintenance
awarded to the opposite party nos.2 and 3.

3. Brief facts of the case shorn off
unnecessary details as pleaded and set forth
before the court below as well as before this
Court in the present revision are that the
opposite party no.2 solemnized marriage with
the revisionist herein on 10.5.2003 as per Hindu
ritual and rites at Status Club Cantt., Kanpur
city.

4. According to the allegations as set forth
in the application under Section 125 of the
Cr.P.C. so preferred by the opposite party nos. 2
and 3, it was alleged that consequent to the
marriage which was solemnized on 10.5.2003,
the opposite party no.2 brought various gifts in
the honour of the revisionist and his family but
11 All. Naveen Agrawal Vs. State of U.P. & Ors.
199
neither the revisionist nor his parents were
happy with the gifts so offered by the family of
the opposite party no. 2 and they asked for
dowry of 4 lakhs. On 28.10.2004 with the
wedlock of the opposite party no.2 and the
revisionist, the opposite party no.3 was born.
Even after the birth of the opposite party no.3,
there was no change in the attitude of either the
revisionist or his parents.

5. On 25.10.2007, the revisionist and his
parents had thrown away the opposite party nos. 2
and 3 from their house only with the clothes which
they were wearing from that point of time whey
the were residing with their parents (Matrimonial
house). It is further alleged that the opposite party
no.2 is/was mentally broken on account whereof
she is not able to earn anything and she is
completely dependent upon her parents.

6. Further it has been pleaded that the
opposite party no.2 has no source of income and
it has become virtually impossible for her to
sustain herself & minor daughter as according to
the opposite party no.2, the revisionist has his
own accommodation and he is/was working in
Chandra Agency and he is getting huge salary in
this regard.

7. On being noticed the revisionist herein
filed its objections.

8. Thereafter now an order has been passed
by the court of Additional Family Judge, Family
Court No.2, Kanpur Nagar on 12.8.2021 whereby
the applications so preferred under Section 125
Cr.P.C. for maintenance has been allowed in part
and the opposite party no.2 has been awarded
maintenance of Rs.4000/- per month as well as the
opposite party no.3 being a minor has been
awarded maintenance of Rs.3000/- per month
totaling to Rs.7000/- per month.

9. Assailing the order dated 12.8.2021
passed in the proceedings under Section 125
Cr.P.C. in the Case No. 460 of 2019, the
revisionist is before this Court.

10. Before proceeding to decide the present
case, it has to be kept in mind that the present
proceedings which have been initiated before
this Court is under the provisions contained
under Section 397/401 Cr.P.C. being revisional
jurisdiction.

11. The scope and the extent of exercise of
revisional jurisdiction under Section 397 and
401 Cr.P.C. is no more res integra as this Court
can only interfere in the order under challenge
when the same is wholly unreasonable or there
is non-consideration of any relevant material or
there is palpable misreading of records as the
revisional court is not justified in setting aside
the order mainly because another view is
possible.

12. In the light of the well settled principle
of law as culled out by the Hon'ble Apex Court,
the present case is to be decided.

13. Brief background of the statutory
enactments so made from time to time are
germane for adjudication of the controversy in
question and hence the same are reproduced
hereinbelow:-

Section 488 of the Cr.P.C. 1898:-

Section 488-Order of maintenance
of wife & children

"(1) If any person having sufficient
means neglects or refuses to maintain his wife or
his legitimate or illegitimate child unable to
maintain itself, the District Magistrate, a
Presidency
Magistrate,
a
Sub
divisional
Magistrate or 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, at
such monthly rate, not exceeding fifty rupees in
the whole, as such Magistrate thinks fit, and to
200 INDIAN LAW REPORTS ALLAHABAD SERIES
pay the same to such person as the Magistrate
from time to time directs.

(2) Such allowance shall be payable
from the date of the order, or if so ordered from
the date of the application for maintenance.

(3) If any person so ordered wilfully
neglects to comply with the order, any such
Magistrate may, for every breach of the order,
issue a warrant for levying the amount due in
manner hereinbefore provided for levying
fines, and may sentence such person, for the
whole or any part of each month's allowance
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, 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 mate an order
under this section notwithstanding such offer,
if he is satisfied that there is just ground for so
doing.

(4) No wife shall he entitled to
receive an allowance 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.

(6) All evidence under this Chapter
shall be taken in the presence of the husband
or father, as the case may be, or, when his
personal attendance is dispensed with, in the
presence of his pleader, and shall be recorded
in the manner prescribed in the case of
summons-cases:

Provided that if the Magistrate is
satisfied that he is wilfully avoiding service, or
wilfully neglects to attend the Court, the
Magistrate
may
proceed
to
hear
and
determine the case ex parte. Any order so
made may be set aside for good cause shown,
on application made within three months from
the date thereof.

(7) The accused may tender himself
as a witness, and in such case shall be
examined as such.

(8) The Court in dealing with
applications under this section shall have
power to make such order as to costs as may
be just.

(9) The accused may be proceeded
against in any district where he resides or is,
or where he last resided with his wife, or, as
the case may be, the mother of the illegitimate
child."

Section 125(1) of the Cr.P.C. 1973

(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 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:

Section
125
Cr.P.C.
1973
as
amended w.e.f. 24.9.2001 -

Section 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
11 All. Naveen Agrawal Vs. State of U.P. & Ors.
201

(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 1[***] 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.-

(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 port of each month's
4[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 just
ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive
an 4[allowance for the maintenance or the
interim maintenance and expenses of proceeding
202 INDIAN LAW REPORTS ALLAHABAD SERIES
, 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.

STATE AMENDMENTS

Uttar Pradesh:

"(6) where in a proceeding under this
section it appears to the Magistrate that the
person claiming maintenance is in need to
immediate relief for his support and the
necessary expenses of the proceeding, the
Magistrate may, on his application, order the
person against whom the maintenance is
claimed, to pay to the person claiming the
maintenance, during the pendency of the
proceeding
such
monthly
allowance
not
exceeding five thousand rupees and such
expenses of the proceeding as the Magistrate
consider reasonable and such order shall be
enforceable as an order of maintenance."

14. The incorporation of the provisions
pertaining to maintenance has been well
recognized and the provisions so contained
under Section 488 of the Cr.P.C. 1898 which is a
pre-constitution enactment has been given
recognition and endorsed while giving it up
proper place and status in Section 125 of the
Cr.P.C., 1973.

15. The laws relating to maintenance have
been enacted as a measure for social justice to
provide immediate relief to dependent being
wives and children for their family support so as
to prevent them from falling into destitution and
vagrancy.

Article 15(3) of the Constitution of
India provides that:

"Nothing in this article shall prevent
the State from making any special provision for
women and children."

16. Thus it can be safely said that the
Constitution of India, 1950 has envisaged a
devise setting up a positive role for the State in
fostering change towards the empowerment of
women leading to amendment in various
legislation and introduction of new legislation.

17. As noticed earlier the pre-constitutional
law being the Code of Criminal Procedure, 1898
relating to Section 488 has been followed in
Section 125 Cr.P.C. before its amendment in the
year 2001 as in other words it can be said that
Section 125 Cr.P.C. is an incarnation of Section
488 of the old Act except the fact that now
parents also are brought into category of persons
eligible for maintenance and further legislative
cognizance has also been taken of the
devaluation of the rupees and escalation of
living cost by raising maximum allowance from
100 to 500. However, now after amendments
made in the year 2001 the ceiling limit for
maintenance has been done away.

18. The Hon'ble Supreme Court in the case
of Captain Ramesh Chander Kaushal Vs.
Mrs. Veena Kaushal and others reported in
(1978) 4 SCC 70 in para 9 has observed as
under:-

"9. This provision is a measure of
social justice and specially enacted to protect
women and children and falls within the
constitutional sweep of Article 15(3) reinforced
by Article 39. We have no doubt that sections of
statutes calling for construction by Courts are
not petrified print but vibrant words with social
functions to fulfil. The brooding presence of the
constitutional empathy for the weaker sections
like
women
and
children
must
inform
11 All. Naveen Agrawal Vs. State of U.P. & Ors.
203
interpretation if it has to have social relevance.
So viewed, it is possible to be selective in
picking out that interpretation out of two
alternatives which advance the cause--the cause
of the derelicts."

19. The basic idea behind insertion of the
provisions relating to grant of maintenance is
to prevent vagrancy and destitution of the
dependents so as to create an atmosphere
whereby a dependent is not allowed to starve
or lead a life which cannot be termed to be a
respectable living.

20. Section 125 of the Cr.P.C. is a selfcontained code which finds presence under
Chapter IX of 1973 Code for the aid of wife,
children and parents in the matter of
maintenance that to in summary proceedings.
Maintenance under Section 125 of the Cr.P.C.
can be claimed by a person irrespective of
belonging to any religious community and the
object of the said Section is to provide
immediate relief to an applicant meaning
thereby that it is a beneficial legislation in
favour of the dependents.

21. It is not a matter of right that a
dependent can claim maintenance under
Section 125 Cr.P.C. as there are certain
conditions. It is further not matter of mere
asking that the maintenance can be claimed by
a dependent as for the said purpose, there are
certain pre-requisite conditions which have to
be satisfied namely;

(i) the husband must have sufficient
means;

(ii) the husband neglects to maintain
his wife, who is unable to maintain herself

22. Yet the Hon'ble Supreme Court in the
case of Shri Bhagwan Dutt Vs. Smt. Kamla
Devi and another reported in (1975) 2 SCC
386 while dealing
with the provisions
contained under Section 488 of the old Act
held as under:-

"19. The object of these provisions
being to prevent vagrancy and destitution, the
Magistrate has to find out as to what is
required by the wife to maintain a standard of
living
which
is
neither
luxurious
nor
penurious, but is modestly consistent with the
status
of
the
family.
The
needs
and
requirements of the wife for such moderate
living can be fairly determined, only if her
separate income, also, is taken into account
together with the earnings of the husband and
his commitments."

23. The Hon'ble Apex Court had even put
a caveat and has cautioned that the proceeding
under Section 125 of the Cr.P.C., 1973 is not
with an object to punish a person but prevent
vagrancy by compelling who can provide
support to those who are unable to support
themselves.

24. Hon'ble Supreme Court in the case of
Chaturbhuj Vs. Sita Bai (2008) 2 SCC 316 in
para 6 has observed as under:-

"6. The object of the maintenance
proceedings is not to punish a person for his
past neglect, but to prevent vagrancy by
compelling those who can provide support to
those who are unable to support themselves and
who have a moral claim to support. The phrase
"unable to maintain herself" in the instant case
would mean that means available to the deserted
wife while she was living with her husband and
would not take within itself the efforts made by
the wife after desertion to survive somehow.

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. Mrs.
Veena Kaushal and Ors (1978) 4 SCC 70) falls
within constitutional sweep of Article 15(3)
204 INDIAN LAW REPORTS ALLAHABAD SERIES
reinforced by Article 39 of the Constitution of
India, 1950. 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 and Ors. (2005) 3
SCC 636."

25. Reiterating the principles of law as laid
down in the aforesaid decisions the Hon'ble
Apex Court in the case of Chanmuniya Vs.
Virendra Kumar Singh Kushwaha and
another (2011) 1 SCC 141 has even gone into
the
marital
status
with
regard
to
long
cohabitation and in para 42 observed as under :-

"42. We are of the opinion that a broad
and expansive interpretation should 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, and strict proof of marriage should not be a
pre-condition for maintenance under Section 125
of the Cr.P.C., so as to fulfil the true spirit and
essence of the beneficial provision of maintenance
under Section 125.We also believe that such an
interpretation would be a just application of the
principles enshrined in the preamble to our
Constitution, namely, social justice and upholding
the dignity of the individual."

26. In the case of Kamla and others Vs.
M.R. Mohan Kumar reported in (2019) 11
SCC 491 the Hon'ble Apex Court has gone to
the extent that long cohabitation between
woman and man leads to presumption of
marriage entitling maintenance for woman and
children born to them.

27. In the touch stone of the principles of
law propounded by the Hon'ble Apex Court the
present controversy is to be addressed.

28. Learned counsel for the revisionist had
manifold submissions:-

(a) The revisionist being the husband
of the opposite party no.2 and the father of the
opposite party no.3 is not financially sound and
rather not in a position to pay maintenance to the
dependents.

(b) The opposite party no.2 being the
wife of the revisionist is financially sound, she is
not entitle to any maintenance from the
revisionist.

(c) The proceedings under Section 125
of the Cr.P.C. are not maintainable at the behest
of the opposite party nos. 2 and 3 as they have
themselves left the home of the revisionist.

(d) Order passed by the court below
directing for grant of maintenance from the date
of the application is illegal.

29. On the other hand, learned AGA, who
appears for the opposite party no.1 has argued
that the revisionist was employed as Third
Engineer in the Merchant Navy and he
voluntarily left the same in order to avoid
payment of maintenance and the fact that he also
resigned from a private employment in Kanpur
shows that he is financially sound.

30. Having gone through the order under
challenge, I find that the revisionist was a Third
Engineer in Merchant Navy. However, he
resigned when the proceedings under Section
125 Cr.P.C. was initiated by the opposite party
nos. 2 and 3 thereafter as per the own showing
of the revisionist, the revisionist got employment
in M/s Chandra Associates, where from he also
resigned. The said fact itself shows that the
revisionist has adequate financial backing.
11 All. Naveen Agrawal Vs. State of U.P. & Ors.
205

31. Further It is also come on record that
the revisionist's father was employed with the
government and thereafter consequent to his
retirement, he was getting pension and after his
death, mother of the revisionist getting family
pension. Further it is also come on record that
the revisionist has his own house and he is the
only son living with his mother.

32. The aforesaid facts have not been
disputed by the revisionist but only this much
has been argued that he is not in a position to
maintain his wife and his minor child

33. In absence of any evidence available
on record either adduced or pleaded inescapable
conclusion follows that the findings recorded by
the court below cannot be said to be perverse, as
onus to prove that the findings are perverse is
upon the revisionist and once the revisionist has
not assailed the said findings seriously the order
cannot be said to be suffering from manifest
illegality.
34. So far as the argument so raised by the
revisionist with regard to the fact that the
opposite party no.2 is financially sound and she
does not need any maintenance is concerned, the
revisionist has pleaded and argued this much
that the opposite party no.2 has done M.A. B.Ed.
and she is earning Rs.20,000/- from R.K.
Education Institute and getting income of
Rs.10,000/- from tuition. The said fact has been
disputed by the opposite party no.2. However,
counsel
for
the
revisionist
husband
has
completely failed to show any document to
fortify the claim set up by him. The court below
has recorded a finding of fact which the
revisionist could not prove otherwise. Hence the
argument so sought to be raised on the said
factual issue deserves to be rejected.

35. The third submission of learned
counsel for the revisionist is with regard to the
fact that the opposite party no.2 being the wife
had left the house voluntarily and on being
called repeatedly she did not come to live with
her husband. The court below has also analysied
said issue and has recorded a finding of fact that
the proceedings under Section 13 of the Hindu
Marriage Act had been instituted by the
revisionist against the opposite party no.2 being
bearing No.1372/12, Navin Agarwal Vs. Smt.
Shanti. The said institution of the proceedings
under Section 13 of the Hindu Marriage itself
shows that it is the revisionist who wanted the
marriage to be dissolved and thus in the said
factual background, it has been rightly held by
the court below that the revisionist never wanted
to live with his wife.

36. Learned counsel for the revisionist has
lastly argued that the maintenance so awarded
by the court below is highly excessive and
further if assuming without admitting the
revisionist is liable to pay maintenance then that
should be from the date of order and not from
the date of the application. The said argument so
sought to be raised by the learned counsel for the
revisionist has no basis as recently the Hon'ble
Apex Court in Criminal Appeal No.730 of
2020, Rajneesh Vs. Neha decided on 4.11.2020
has observed as under :-

Discussion and Directions

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 S. 125(2) Cr.P.C., it would
be appropriate to grant maintenance from the
date of application in all cases, including
Section 125 Cr.P.C. In the practical working of
the provisions relating to maintenance, we find
that there is significant delay in 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.
206 INDIAN LAW REPORTS ALLAHABAD SERIES

In Shail Kumari Devi and Ors. v
Krishnan Bhagwan Pathak 2008 9 SCC 632, this
Court held that the entitlement of maintenance
should not be left to the uncertain date of
disposal of the case. The enormous delay in
disposal of proceedings justifies the award of
maintenance from the date of application. In
Bhuwan Mohan Singh v Meena61, this Court
held that repetitive adjournments sought by the
husband in that case resulted in delay of 9 years
in the adjudication of the case. The delay in
adjudication was not only against human rights,
but also against the basic embodiment of dignity
of an individual. The delay in the conduct of the
proceedings would require grant of maintenance
to date back to the date of application.

The rationale of granting maintenance
from the date of application finds its roots in the
object of enacting maintenance legislations, so
as to enable the wife to overcome the financial
crunch which occurs on separation from the
husband. Financial constraints of a dependant
spouse hampers their capacity to be effectively
represented before the Court. In order to
prevent a dependant from being reduced to
destitution, it is necessary that maintenance is
awarded from the date on which the application
for maintenance is filed before the concerned
Court.

In Badshah v Urmila Badshah Godse
(2014) 1 SCC 188 , the Supreme Court was
considering the interpretation of Section 125
Cr.P.C. The Court held :

"13.3. ...purposive interpretation needs
to be given to the provisions of Section 125
CrPC. While dealing with the application of a
destitute wife or hapless children or parents
under this provision, the Court is dealing with
the marginalised sections of the society. The
purpose is to achieve "social justice" which is
the constitutional vision, enshrined in the
Preamble of the Constitution of India. The
Preamble to the Constitution of India clearly
signals that we have chosen the democratic path
under the rule of law to achieve the goal of
securing for all its citizens, justice, liberty,
equality and fraternity. It specifically highlights
achieving their social justice. Therefore, it
becomes the bounden duty of the courts to
advance the cause of the social justice. While
giving interpretation to a particular provision,
the court is supposed to bridge the gap between
the law and society." (emphasis supplied)

It has therefore become necessary to
issue directions to bring about uniformity and
consistency in the Orders passed by all Courts,
by directing that maintenance be awarded from
the date on which the application was made
before the concerned Court. The right to claim
maintenance must date back to the date of filing
the application, since the period during which
the maintenance proceedings remained pending
is not within the control of the applicant."

Final Directions

In view of the foregoing discussion as
contained
of
this
judgment,
I
deem
it
appropriate to pass the following directions in
exercise of our powers under Article 142 of the
Constitution of India:-

(a)......................

(b).......................

(c)...........................

(d) Date from which maintenance is
to be awarded

We make it clear that maintenance in
all cases will be awarded from the date of filing
the application for maintenance."

37. The Hon'ble Apex Court has clearly
mandated that maintenance in all cases will be
awarded from the date of the filing of the
application for maintenance.

38. Perusal of the application under
Section 125 of the Cr.P.C. shows that opposite
party nos. 2 and 3 had claimed maintenance of
Rs.30,000/- from the revisionist. However, the
court below in the order under challenge has
awarded maintenance to the opposite party no.2
to the tune of Rs.4000/- and Rs.3000/- to the
11 All. Raju @ Rajesh Kumar Vs. State of U.P. & Anr.
207
minor son of the revisionist. This Court finds
that there are sufficient material on record to
show that the determination so done by the court
below while awarding Rs.4000/-per month as
maintenance to the wife and Rs.3000/- towards
maintenance of the minor son per month is not
excessive. The court below has taken note of the
income of the revisionist as well as the financial
condition of the opposite party no.2 as well as
the prevailing circumstances including the
inflation. Hence the arguments so raised by the
learned counsel on that count deserves to be
rejected.

39. No other point has been raised by
learned counsel for the revisionist.

40. Resultantly, this Court does not find
any manifest illegality by the court below in the
order dated 12.8.2021 passed by the court of
learned Additional Family Judge/Family Court,
Court No.1, Kanpur Nagar in the proceedings
under Section 125 Cr.P.C. having Case
No.460/2019, (CNRI-UPKN) 0200164/2019,
Smt. Shalini and others Vs. Navin Agarwal.

41. Accordingly, the criminal revision is
dismissed.
----------
(2021)12ILR A207
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 3037 of 2021

Raju @ Rajesh Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Prem Prakash, Sri Abhay Raj

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 - Revision -
Indian Penal Code, 1860 - Section 354-A, 342,
323, 286 - doctrine judex damnatur cum
nocens absolvitur (Judge is condemned when
guilty is acquitted) - stage contemplated under
section 319 Cr.P.C. - stage before conclusion of
trial - Magistrate must be prima facie of the
opinion that there are sufficient material and
cause for summoning the culprit who is either
not named in the FIR or if named, he has not
been charge sheeted or discharged. (Para -20 )

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 319 - Power to
proceed against other persons appearing to be
guilty of offence - once the Magistrate finds
that there was sufficient material available on
record before it to summon a person in the trial
which is proposed to be undertaken then the
powers u/s 319 Cr.P.C. are to be invoked. (Para
- 18)

Aggrieved against non-submission of charge sheet
against the applicant - O.P. no.2 preferred an
application under Section 319 CrPC - court below
summoned revisionist.

HELD:- Court in exercise of the revisional
jurisdiction cannot embark upon the inquiry with
regard to facts of the case, particularly when the
courts below had applied its mind and taken a
view, which does not appear to be perverse or
palpable while issuing summons. There exist
sufficient material which itself shows that the
powers exercised by the court below while
summoning the applicants, does not suffer from
any illegality and infirmity. No good ground to
interfere into the order summoning the revisionist.
(Para - 28,29)

Criminal Revision dismissed. (E-7)

List of Cases cited:-

1. Hardeep Singh Vs St. of Punj. , 2014 (3) SCC 92S

2. Mohammad Ispahani Vs Yogendra Chandak & ors. ,
(2017) 16 SCC 226