# Om Prakash Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 624
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-14
- **Case number:** Criminal Revision No. 870 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-revisionist-v-state-of-u-p-ors-46667
- **Pages:** 4

## Headnote

(A) Criminal Law - The Family Courts Act, 1984
- Sections 14 & 19(4) - revision - The Code of
criminal procedure, 1973 - Section 125 -
maintenance, section 362 - No court can alter
or review a judgement or a final order once it
has been signed, except to correct a clerical or
arithmetical error - Power of a magistrate to
alter its orders passed under section 125 of the
code of criminal procedure for maintenance are
not hit by the embargo entailed in section 362 ,
which bars criminal courts from altering their
orders (Sanjeev Kapoor vs. Chandana Kapoor
and Others (2020) 13 SCC 172) (Para - 8,9)

Application of revisionist paper no. C-45 for forensic
examination of the handwriting and photographs in
the documentary evidence - Revisionist filed an
application C-53 supported by an affidavit - praying
for review and modification of the order - trial court
rejected the application - ground - under Criminal
Procedure Code an order cannot be modified or
reviewed by any trial court - hence revision.(Para - 7)

HELD:-Trial
court
rejected
the
modification
application paper no.C-53 as also the application
paper no. C- 45 of the revisionist without looking into
the law settled by the Hon'ble Supreme Court in the
case of Sanjeev Kapoor vs. Chandana Kapoor and
Others although the same was cited before it.(Para -
10)

Criminal Revision disposed off.(E-7)

List of Cases cited:-

## Text

624 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise of the aforesaid discretion by the court
below so as to warrant interference.

16. Having regard to the aforesaid, this
court is not inclined to exercise its inherent
jurisdiction under Section 482 Cr.P.C. to
interfere in the matter.

17. The application stands accordingly
dismissed.
----------
(2021)12ILR A624
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision No. 870 of 2021

Om Prakash ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Babita Verma, Amitabh Singh Raikwar, Gyan
Singh Chauhan, Jagjeet Singh

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - The Family Courts Act, 1984
- Sections 14 & 19(4) - revision - The Code of
criminal procedure, 1973 - Section 125 -
maintenance, section 362 - No court can alter
or review a judgement or a final order once it
has been signed, except to correct a clerical or
arithmetical error - Power of a magistrate to
alter its orders passed under section 125 of the
code of criminal procedure for maintenance are
not hit by the embargo entailed in section 362 ,
which bars criminal courts from altering their
orders (Sanjeev Kapoor vs. Chandana Kapoor
and Others (2020) 13 SCC 172) (Para - 8,9)

Application of revisionist paper no. C-45 for forensic
examination of the handwriting and photographs in
the documentary evidence - Revisionist filed an
application C-53 supported by an affidavit - praying
for review and modification of the order - trial court
rejected the application - ground - under Criminal
Procedure Code an order cannot be modified or
reviewed by any trial court - hence revision.(Para - 7)

HELD:-Trial
court
rejected
the
modification
application paper no.C-53 as also the application
paper no. C- 45 of the revisionist without looking into
the law settled by the Hon'ble Supreme Court in the
case of Sanjeev Kapoor vs. Chandana Kapoor and
Others although the same was cited before it.(Para -
10)

Criminal Revision disposed off.(E-7)

List of Cases cited:-

1. Lakshmi & anr. Vs Chinnammal @ Rayyammal &
ors, Civil No. 2243 of 2009

2. Sanjeev Kapoor Vs Chandana Kapoor & ors.,
Criminal Appeal No. 286 of 2020

3. Sanjeev Kapoor Vs Chandana Kapoor & ors.,
(2020) 13 SCC 172

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. This Criminal Revision has been filed
under Section 19 (4) of the Family Courts Act,
1984 against the impugned Orders dated
07.10.2021 & 26.10.2021 passed by the
Additional Principal Judge, Court No.-10,
Family Court, Lucknow in Criminal Misc. Case
No. 1024 of 2006 in Re: Smt. Rajrani and 2
others vs. Om Prakash, on an application filed
under Section 125 Cr.P.C. relating to Police
Station Malihabad, District Lucknow.

2. At the outset, learned counsel for the
revisionist has stated that he had earlier filed
Revision No. 838 of 2021, which was dismissed
as withdrawn with liberty to file a fresh revision
by this Court vide its order dated 07.12.2021.
The application under Section 125 Cr.P.C. was
filed by the opposite party no.2 alongwith her
two children, who were minors at that time and
have now become major and arrayed as opposite
11 All. Om Prakash Vs. State of U.P. & Ors.
625
party no. 3 and 4. Such application was filed on
27.11.2006 stating, therein, that she was
constantly being harassed with the demand of
more dowry ever since the time of her marriage
she was also thrown out from the matrimonial
home. Later on a compromise occurred between
the parties due to the intervention of family and
friends. She came back to the matrimonial house
where a son was born to her, later on a daughter
was also born to her and at the time of making
such application they were aged four years and
two and a half years, respectively. After the
daughter was born, the relationship between the
applicant and the revisionist soured to such
extent that she had to leave her matrimonial
home again and is now residing in her parental
house. Since September 2006 till the date of
filing of application, no maintenance was given
to her by her husband.

3. The applicant was uneducated and
unskilled woman and it has been difficult for her
to raise her two children, therefore, the
maintenance application was filed. On the other
hand, the revisionist owned five bighas of land,
where he grew vegetables and earned round
about Rs.15,000/- per month, also, he was doing
wholesale business in Kanpur from which he
earned around Rs.15,000/- to Rs. 20,000/- per
month. The income of the revisionist being more
than 30,000/- per month, a prayer was made that
the applicant and her two children be granted Rs.
20,000/- per month as maintenance.

4. The revisionist after issuance of notice
filed written statement objection. Thereafter
documentary and oral evidence were taken.
Thereafter, learned trial court passed the order
impugned by which the application of the
revisionist
paper
no.
C-45
for
forensic
examination of the handwriting and photographs
in the documentary evidence that were produced
by the revisionist was prayed to be got done.
The revisionist had argued that in the crossexamination of the applicant on 17.10.2019, she
had admitted that the two children who were
shown in the photograph were not that of the
revisionist, and the handwriting and signatures
on paper no. C-32/5 and C-32/6 were not her's.

5. Learned trial court placed reliance upon
Section 14 of the Family Courts Act with regard
to the power of the Family Court to take
documentary evidence into account for a proper
adjudication of the case. Even such documentary
evidence could be looked into which under the
Evidence
Act,
1972
was
otherwise
not
admissible. Learned trial court observed that the
opposite party who was merely delaying the
decision on the application under Section 125 of
the Cr.P.C. by moving such an application for
getting forensic examination done. In the written
statement that were filed by him and the
objections paper no. A-3, he had not taken any
such objections that were now being raised at
the time of arguments that the applicant had
married some other person and that the children
were not his. The application no.C-45 was
rejected and a direction was issued that the
matter be listed on 16.10.2021 as the High Court
had already passed an order saying that the
application of maintenance be decided within
three months.

6. The revisionist, thereafter, filed another
application C-53, supported by an affidavit
praying for review and modification of the order
dated 07.10.2021. It was stated that paper no.
C32/5 and C-32/6 have been referred to in the
order dated 07.10.2021 to be photocopies of
original document, however, they were actually
the original documents which had been
submitted in a sealed cover and were attached
alongwith the paper book in its record. This
showed that the learned trial court had not even
opened the sealed cover and taken a look at
paper no. C-32/5 and C-32/6. It was on these
papers that his whole defence regarding
application for maintenance filed by the
applicant were based. Such documents would
626 INDIAN LAW REPORTS ALLAHABAD SERIES
show that the applicant was living outside the
matrimonial home alongwith her children, out of
her own sweet will.

7. It was also argued by the learned
counsel for the revisionist that a reference had
been made during the course of the argument to
the judgement rendered by the Hon'ble Supreme
Court in Civil No. 2243 of 2009, Lakshmi &
Another vs. Chinnammal @ Rayyammal &
Ors; and another judgement rendered in Sanjeev
Kapoor vs. Chandana Kapoor and Others in
Criminal Appeal No. 286 of 2020, but the
learned trial court failed to appreciate the law
settled by the Hon'ble Supreme Court correctly
and rejected the application by saying that under
the Criminal Procedure Code an order cannot be
modified or reviewed by any trial court.

8. It has been submitted by the learned
counsel for the revisionist that the perusal of the
judgements rendered by the Hon'ble Supreme
Court in the case of Sanjeev Kapoor vs.
Chandana Kapoor and Others (2020) 13 SCC
172 in Criminal Appeal No. 286 of 2020 decided
on 19.02.2020, which was cited before the trial
court would show that the Court had considered
the arguments regarding Section 362 Cr.P.C. and
the
bar
mentioned
therein
for
review/modification of order passed by the
Criminal Court. The Hon'ble Supreme Court had
observed that orders passed under Section 125
Cr.P.C. can be modified on subsequent events
taking place for example, when an application
for enhancement of maintenance is filed by the
applicant. The Hon'ble Supreme Court had
observed in paragraph 21 that the legislature was
aware that there are and may be the situations
where altering or reviewing of criminal court
judgement is contemplated in the Code itself or
any other law for the time being in force. For
example Under Section 145 Cr.P.C. the rigours
of Section 362 Cr.P.C. were relaxed. Similarly,
Section 125 Cr.P.C. alongwith its Sub-Sections
125 as well as Section 127 of the Cr.P.C. were
considered by the Hon'ble Supreme Court and it
also considered the trial court's jurisdiction to
alter the maintenance on proof of change in
circumstances of any person receiving such
maintenance under Section 125 Cr.P.C., or
where it appeared to the Magistrate that in
consequence of any decision of the competent
civil court any order made under Section 125
Cr.P.C. should be cancelled or varied, or where
any order has been made under Section 125
Cr.P.C. in favour of a woman who has been
divorced or has obtained a divorce from her
husband, and that after divorce she has remarried or that she has received permanent
alimony.

 Several such instances were referred
to by the Hon'ble Supreme Court where the
order passed under Section 125 Cr.P.C. was
capable of alteration in terms of the language of
different Sections of the Cr.P.C. itself.

9. In paragraph 27 of the report, it referred
to Section 362 of the Cr.P.C. and then observed
that such embargo is expressly relaxed in a
proceeding under Section 125 Cr.P.C., and
therefore, the Family Court was entitled to
cancel its earlier order and pass a different order
in the facts and circumstances of the case before
it.

10. This Court having considered the
judgement rendered in Sanjeev Kapoor vs.
Chandana Kapoor and Others and also the
orders dated 26.10.2021 and 07.10.2021 finds
that the learned trial court has rejected the
modification application paper no. C-53 as also
the application paper no. C-45 of the revisionist
without looking into the law settled by the
Hon'ble Supreme Court in the case of Sanjeev
Kapoor(Supra) although the same was cited
before it.

11. Accordingly, this revision is disposed
of and the orders dated 07.10.2021 and
11 All. Smt. Vijai Lakshmi Vs. Lalji
627
26.10.2021 are set aside with a direction to the
learned trial court to consider both the
applications afresh in the light of the judgements
rendered by the Hon'ble Supreme Court in the
case of Sanjeev Kapoor(Supra) and pass
appropriate orders thereafter within a period of
six weeks. from the date of the copy of this order
be produced before it.
----------
(2021)12ILR A627
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.10.2021

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE KRISHAN PAHAL, J.

First Appeal No. 241 of 2006

Smt. Vijai Lakshmi ...Appellant
Versus
Lalji ...Respondent

Counsel for the Appellant:
Sri A.K. Gupta, Sri A.K.Mishra, Sri Ashish Agrawal, Sri
Dinesh Gupta, Sri Dinesh Mishra

Counsel for the Respondents:
Sri Satish Kumar Mishra, Sri A.C. Tiwari, Sri Arvind
Kumar Srivastava, Sri H.P. Dubey, Sri Rajesh Kishore
Srivastava, Sri Satish Kumar Mishra

A. Hindu Marriage Act, 1955 - Section 13(1) -
Family dispute - Divorce - Cruelty - Proof -
Criminal complaint by the wife against husband
- Relevancy - Held, mere fact that the wife had
lodged
the
criminal
complaint
on
the
allegations of atrocities committed by the
husband after a compromise had been arrived
between the parties would not be a reason to
hold that the complaint was false and the wife
had committed cruelty by lodging the said
report - The ground for seeking the decree of
divorce, i.e cruelty, taken by the husband in the
plaint could not be proved by bringing any
cogent material on record - The bald assertion
of the husband in his statement recorded
before the Family Court is not sufficient to
prove cruelty on the part of the wife - High
Court found the findings returned by the trial
court for granting the divorce on the ground of
cruelty not sustainable. (Para 13 and 15)
B. Hindu Marriage Act, 1955 - Section 13(1) -
Divorce - Irretrievable Breakdown of Marriage
-
Relevancy
-
Held,
the
'irretrievable
breakdown of marriage' not being a ground of
divorce under Section 13(1) of the Hindu
Marriage Act, the decree of divorce cannot be
granted on the said ground while deciding the
appeal arising out of the proceeding under
Section 13(1) of the Hindu Marriage Act. (Para
20)
C. Constitution of India - Article 15(3) and 39 -
Right of maintenance - Social justice - While
wife had no source of earning, the husband
was a permanent driver - Liability of husband
to honour matrimonial obligations - Held,
maintenance laws have been enacted as a
measure of social justice to provide recourse to
dependent wife and children for their financial
support; so as to prevent them from falling into
destitution and vagrancy - Article 15(3) of the
Constitution of India reinforced by Article 39 of
the Constitution of India envisages a positive
role of the St. in fostering change towards the
empowerment of women. (Para 29 and 31)
D. Hindu Adoptions and Maintenance Act, 1956
- Section 18 - Right of Maintenance - The right
to claim maintenance u/s 18 of the Act, 1956 is
a substantive right - Section 18 recognises the
right of a Hindu wife to seek maintenance from
her husband during her life-time while living
separately from her husband - Sub-Section (2)
of Section 18 provides that a Hindu wife shall
be entitled to live separately from her husband
without forfeiting her claim to maintenance; if
he is guilty of desertion, i.e. abandoning her
without reasonable cause and without her
consent or against her wish, or of willfully
neglecting her - While the wife is forced to live
separately as the respondent-husband has
deserted her without any reasonable excuse,
she is entitled for monthly maintenance during
her life-time which is being fixed to the tune of
Rs. 30,000/- per month. (Para 35, 37 and 41)
E. Family Courts Act, 1984 - Section 19 -
Appellate power of the High Court - Nature and
Scope - Held, the appeal u/s 19 of the Family