# Pinki Vishwakarma & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-28
- **Case number:** Criminal Revision No. 462 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pinki-vishwakarma-anr-revisionists-v-state-of-u-p-anr-51696
- **Pages:** 8

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 397, 401 & 125 - Revision
58 INDIAN LAW REPORTS ALLAHABAD SERIES
against
order
dated
06.12.2022
rejecting
maintenance application - Held, trial court erred
in dismissing application based on unproved
ultrasound report and alleged prior marriage of
revisionist no. 1 - Ultrasound report not duly
proved, presumption under Section 112 of
Indian
Evidence
Act
applies,
establishing
revisionist no. 2 as legitimate child of opposite
party no. 2 - Revisionist no. 1's separation
justified due to dowry harassment and opposite
party's second marriage - Trial court's findings
perverse, impugned order set aside - Matter
remanded for fresh consideration with directions
to ascertain opposite party's income per Rajnesh
Vs Neha. (Para 12-23)

Revision allowed.

List of Cases Cited:

## Text

3 All. Pinki Vishwakarma & Anr. Vs. State of U.P. & Anr.
57

(b) knowingly disobeys, to the
prejudice of any person, any other direction
of the law regulating the manner in which
he shall conduct such investigation, or

(c) fails to record any information
given to him under sub-section (1) of
Section 154 of the Code of Criminal
Procedure, 1973 (2 of 1974), in relation to
cognizable
offence
punishable
under
Section 326-A, Section 326-B, Section 354,
Section 354-B, Section 370, Section 370-A,
Section 376, Section 376-A, Section 376AB, Section 376-B, Section 376-C, Section
376-D, Section 376-DA, Section 376-DB],
Section 376-E or Section 509,

shall be punished with rigorous
imprisonment for a term which shall not be
less than six months but which may extend
to two years, and shall also be liable to
fine."

40. The S.H.O. had registered the
F.I.R. and had entrusted investigation to the
Investigating
Officer,
who
conducted
investigation and found that the offences
alleged
was
not
made
out.
The
investigation was carried out in compliance
of the order passed by the Magistrate,
although that order was not in accordance
with law as it had directed investigation by
the police without recording a prima facie
satisfaction that a cognizable offence had
been committed warranting investigation
by the police. The S.H.O. obeyed the order
of the C.J.M. concerned, registered a case
and got the same investigated. Merely
because the court is not convinced with the
findings of the S.H.O. it cannot be said that
the S.H.O. has not obeyed direction of the
C.J.M., although it was not in accordance
with law.

41. Failure to register an F.I.R. is an
offence under Section 166-A I.P.C. only if
the report was regarding commission of
offences under Section 326-A, Section 326B, Section 354, Section 354-B, Section
370, Section 370-A, Section 376, Section
376-A, Section 376-AB, Section 376-B,
Section 376-C, Section 376-D, Section
376-DA, Section 376-DB], Section 376-E
or Section 509. Failure to register F.I.R. for
offence under Section 409 would not be an
offence under Section 166-A, I.P.C.

42. In view of the aforesaid
discussions, the impugned order dated
17.10.2021 passed by the C.J.M. suffers
from
patent
illegalities
and
it
is
unsustainable in law. The continuance of
prosecution on the basis of such an order
would clearly be an abuse of the process of
law, warranting interference by this Court
in exercise of its revisional powers.

43. Accordingly, the revision is
allowed. The
impugned
order
dated
17.02.2021, passed by learned C.J.M.,
Barabanki in Case No.717 of 2021 - Ram
Pratap Versus Anup Kumar Singh and
others, is hereby set aside.
----------
(2024) 3 ILRA 57
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2024
BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 462 of 2023

Pinki Vishwakarma & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Shailendra Kumar Rai, Sri Hari Keshav

Counsel for the Opposite Parties:
G.A., Sri Pradeep Kumar Rai

Criminal Law - Criminal Procedure Code,
1973 - Sections 397, 401 & 125 - Revision
58 INDIAN LAW REPORTS ALLAHABAD SERIES
against
order
dated
06.12.2022
rejecting
maintenance application - Held, trial court erred
in dismissing application based on unproved
ultrasound report and alleged prior marriage of
revisionist no. 1 - Ultrasound report not duly
proved, presumption under Section 112 of
Indian
Evidence
Act
applies,
establishing
revisionist no. 2 as legitimate child of opposite
party no. 2 - Revisionist no. 1's separation
justified due to dowry harassment and opposite
party's second marriage - Trial court's findings
perverse, impugned order set aside - Matter
remanded for fresh consideration with directions
to ascertain opposite party's income per Rajnesh
Vs Neha. (Para 12-23)

Revision allowed.

List of Cases Cited:

1. Rajnesh Vs Neha, (2021) 2 SCC 324

2. Shamima Farooqui Vs Shahid Khan, (2015) 5
SCC 705

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

4. Chaturbhuj Vs Sita Bai, (2008) 2 SCC 316

5. Sunita Kachwaha Vs Anil Kachwaha, (2014)
16 SCC 715

6. Badshah Vs Urmila Badshah Godse, (2014) 1
SCC 188

7. Chanmuniya Vs Virendra Kumar Singh
Kushwaha, (2011) 1 SCC 141

8. Dwarika Prasad Satpathy Vs Bidyut Prava
Dixit, (1999) 7 SCC 675

9. Kamala Vs M.R. Mohan Kumar, (2019) 11
SCC 491

10. K. Srinivas Rao Vs D.A. Deepa, (2013) 5 SCC
226

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

Heard Sri Hari Keshav, Advocate,
holding brief of Sri Shailendra Kumar Rai,
learned counsel for the revisionists and Sri
Pradeep Kumar Rai, learned counsel for the
opposite party no. 2.

2. This criminal revision has been
instituted against judgement and order
dated
06.12.2022
passed
by
learned
Principal Judge, Family Court, Ghazipur in
Criminal Misc. Case No. 838 of 2020,
Pinki Vishwakarma and Another Vs. Ashok
Kumar Vishwakarma u/s 125 Cr.P.C.

3. By the impugned order, Principal
Judge, Family Court, Ghazipur, dismissed
the
misc.
case
filed
by
applicants/revisionists for maintenance.

4. It has been submitted by learned
counsel for the revisionists that the learned
Principal Judge, Family Court, Ghazipur,
acted mechanically and vide impugned
judgement and order dated 06.12.2022
rejected her application u/s 125 Cr.P.C. in a
routine manner without considering the
facts and circumstances of the case and
without perusing the evidence on record. It
has also been submitted that the impugned
judgement was passed on the basis of
forged certificate issued by the President of
Maa Sheetla Sanrakshak Pujari Samiti,
Sultanpur, Chunar, Mirzapur, wrongly
showing that the revisionist no. 1, Pinki
Vishwakarma was earlier married with one
Raju Vishwakarma, son of Late Uma
Vishwakarma. The impugned judgement
and order dated 06.12.2022 passed by
learned Principal Judge, Family Court,
Ghazipur, is bad, wholly illegal and
arbitrary, which is not sustainable in the
eyes of law. It has also been submitted that
the trial court has passed the impugned
judgement and order on the basis of
unproved documents produced by opposite
party no. 2. It has also been submitted that
the
learned
Family
Court
wrongly
3 All. Pinki Vishwakarma & Anr. Vs. State of U.P. & Anr.
59
calculated the period of pregnancy of
revisionist no. 1 on the basis of forged
medical documents produced by the
opposite party no. 2 and came to the
conclusion that revisionist no. 1 was
pregnant before her marriage with opposite
party no. 2. The Medical Officer who had
prepared the documents was not examined
before the Family Court. It has also been
submitted that the learned trial court has
ignored the fact that the revisionist no. 1 is
the legally wedded wife of the opposite
party no. 2 and she is unable to maintain
herself along with her minor daughter.
Therefore, she could have been granted
maintenance for herself as well as her
daughter. The learned Family Court has
committed
manifest
illegality
causing
irreparable loss and damage to the
revisionists. Therefore, the impugned order
should be set-aside by this Court. It has
also been submitted that the revisionist no.
1 after her marriage to opposite party no. 2
went to her matrimonial home and stayed
there for 11⁄2 months with opposite party no.
2 and his family members. During this
period, she got pregnant with her relation
with opposite party no. 2. At her
matrimonial home, opposite party no. 2 and
his family members pressurized her to
bring Rs.2,00,000/- cash, her father's truck
and plot of 3 biswa land situated in front of
Government Hospital on the GhazipurVaranasi main road. When revisionist no. 1
and her family members refused to fulfil
the demands of dowry of opposite party no.
2 and his family members, they harassed
her, beat her and threatened to murder her
and at 8 p.m., they turned her out of her
matrimonial home after snatching her
jewellery, clothes and other items. Since
then, revisionist no. 1 is staying in her
parental home. In her parental home,
revisionist no. 1 gave birth to her daughter.
During her stay at her parental home,
opposite party no. 2 did not provide any
maintenance to revisionist nos. 1 and 2.
Therefore, she filed application u/s 125
Cr.P.C. for maintenance.

5. Per contra, learned counsel for the
opposite party no. 2 while opposing the
revision, has submitted that prior to the
marriage with opposite party no. 2,
revisionist no. 1 had solemnized her
marriage with Raju Vishwakarma on
02.05.2004. Without obtaining divorce
from her first husband and with a view to
grab the property of opposite party no. 2
and extort money in the name of alimony,
she married opposite party no. 2. The
revisionist no. 1 stayed only for 4 days with
opposite party no. 2 and then she left. After
that she is living with her first husband. It
has also been submitted that after obtaining
Rs.1,00,000/- from opposite party no. 2,
revisionist no. 1 has taken divorce on
15.03.2008 with him before Panchayat
members. The revisionist no. 2, Vaishnavi
was not born from her wedlock with
opposite party no. 2 but she was born out
from the wedlock of first marriage with
Raju Vishwakarma. It has also been
submitted that revisionist no. 1 married
with opposite party no. 2 on 12.12.2006.
She got her ultrasound done by Dr. Usha
Gupta at Aashirvaad Hospital and Research
Centre,
Mehmudganj,
Varanasi
on
09.02.2007. According to the ultrasound,
medical paper no. 113(b) in remark 9, it is
specifically mentioned that ultrasound
gestation age is 10 weeks. It means that the
revisionist no.1 had carried a foetus of 70
days at the date of 09.02.2007. Hence, on
this basis it can be concluded that on the
date of her marriage with opposite party no.
2, i.e., 12.12.2006, the revisionist no.1 had
carried a foetus of 11 days. It has also been
submitted that the revisionist no. 1 has
admitted in her cross-examination that she
60 INDIAN LAW REPORTS ALLAHABAD SERIES
had filed medical papers annexed to her
application
u/s
156(3)
Cr.P.C.
for
registration of case u/s 498-A I.P.C. She has
also admitted that before marriage, she had
no acquaintance with opposite party no. 2.
It has also been submitted that since
revisionist no. 1 had admitted the medical
paper regarding her ultrasound in her
examination-on-oath, thus these papers
under the provisions of Section 58 of
Evidence Act can be considered as
admissible in evidence without being
proved. It has also been submitted that
opposite party no. 2 had filed application
no. 136-b on 25.02.2019 for summoning
the doctor for proving the medical paper
and application no. 128-b on 27.02.2018
for conduct of DNA test of revisionist no. 1
but his application was rejected by the trial
court vide orders dated 25.02.2019 and
17.10.2018 respectively. It has also been
submitted that the trial court, after
considering the evidence on record as well
as the legal provisions applicable thereto,
had passed the impugned judgement and
order and there is no illegality in it and the
revision should be rejected.

6. In its impugned judgement and
order dated 06.12.2022, the Principal
Judge, Family Court, after discussing the
pleadings of the parties and documentary
and oral evidence on record, has alluded
that the marriage of revisionist no. 1 was
solemnized with opposite party no. 2 on
12.12.2006 according to Hindu rites and
customs and after the marriage, she came to
her matrimonial home and started living
with opposite party no. 2.

7. In the impugned judgement and
order dated 06.12.2022, the trial court has
mentioned that opposite party no. 2 has
filed original certificate, paper no. 1, 48-b
which shows that revisionist no.1, Pinki
Vishwakarma, daughter of Shyam Deo
Vishwakarma,
resident
of
Nandganj,
Ghazipur
was
married
to
Raju
Vishwakarma
son
of
late
Uma
Vishwakarma, village- Varapur, Nandganj,
Ghazipur, on 02.05.2004 in the courtyard of
Sheetala
Dham
Mandir,
Adalpura,
Mirzapur in the presence of priests. It has
also been mentioned that opposite party no.
2 who produced the documents in the Court
has stated in his evidence that this original
document was given to his father, Subhash
Vishwakarma, in the year 2018 by
Chandrama Vishwakarma, father-in-law of
revisionist no. 1's brother, Babulal, whose
daughter Sunita was married to Babulal.
The trial court has mentioned that since
revisionist no. 1 did not file any document
in rebuttal of this certificate, the contents of
the documents was considered as proved
and relied upon.

8. The trial court has also mentioned
that
the
revisionist
no.
1,
Pinki
Vishwakarma had on the advice of Dr.
Usha Gupta of Aashirvaad Hospital and
Research Centre, Mehmudganj, Varanasi,
got her ultrasound done on 09.02.2007 at
the Diagnostic Ultrasound unit of aforesaid
hospital regarding her pregnancy. In its
medical report dated 29.11.2006, it was
mentioned that the foetus is 10 weeks old.
Therefore, the conceivement had taken
place 70 days before from 29.11.2006 i.e.
before the date of her marriage 12.12.2006
with opposite party no. 2. The Principal
Judge, Family Court, has also mentioned
that the revisionist no. 1 admitted in her
evidence that she had submitted her
medical report with her application u/s 156
(3)
Cr.P.C.
for
registration
of
first
information report. She had also admitted
that she obtained the aforesaid medical
report from the file of misc. case u/s 156
(3) Cr.P.C. and she had filed it in the case
3 All. Pinki Vishwakarma & Anr. Vs. State of U.P. & Anr.
61
of maintenance u/s 125 Cr.P.C. On the basis
of the aforesaid evidence, the learned
Principal Judge, Family Court, concluded
that since the ultrasound report has been
admitted by the revisionist no.1, it can be
considered as proved and can be relied
upon against revisionist no. 1. On the basis
of the aforesaid evidence, the trial court has
concluded that before her marriage with
opposite party no. 2, Ashok Kumar
Vishwakarma, the revisionist no.1 had
illicit relation with some other person from
which revisionist no. 1 was conceived.
Since revisionist no. 1 has admitted that
before her marriage with opposite party no.
2, she did not have any acquaintance with
him, the trial
court concluded that
revisionist no. 1 was not pregnant with her
relation with opposite party no. 2 and
revisionist no.2 was not born from the
wedlock of revisionist no. 1 with opposite
party no. 2.

9. After the aforesaid discussions, the
trial court has dismissed the application u/s
125 Cr.P.C. filed by the revisionist no. 1 on
the ground that :-

(i) revision no. 1 had adulterous
relationship with some other person before
her marriage to opposite party no. 2, and,

(ii) the revisionist no. 2 was not
conceived from the wedlock of revisionist
no.1 with opposite party no. 2 but from
some other person, therefore, she was not
entitled to maintenance u/s 125 Cr.P.C.

(iii) the revisionist no. 1 is
staying separately from opposite party no. 2
without any reason after staying in her
matrimonial home of 11⁄2 month with him.

10. Regarding conceivement of
revisionist no. 1 before her marriage to
opposite party no. 2, Ashok Kumar
Vishwakarma, the trial court has relied on
the ultrasound report dated 09.02.2007
regarding the foetus of revisionist no. 1 in
which the age of the foetus is shown as 10
weeks which is equal to 70 days. Therefore,
on the date of her marriage to opposite
party no. 2 i.e. on 12.12.2006, the
revisionist no. 1 was bearing the foetus of
11 days. The trial court has mentioned in its
judgement that the revisionist no. 1 had
admitted the medical papers in her crossexamination. Therefore, it can be presumed
as duly proved and can be relied upon as
evidence. The alleged ultrasound report
dated 09.02.2007 which was prepared on
the basis of the ultrasound of revisionist
no.1 done at Aashirvaad Hospital and
Research Centre, Mehmudganj, Varanasi
under the supervision of Dr. Usha Gupta
which is mentioned in the judgement as
paper no. 113-b has not been proved by the
evidence of Dr. Usha Gupta or any other
person of the ultrasound centre who was
familiar with the handwriting and signature
of Dr. Usha Gupta.

11. Since opposite party no. 2 did not
file any criminal revision in the Hon'ble
High Court against rejection of his
aforesaid
application,
therefore,
the
aforesaid order of the trial court rejecting
his application has become final and the
opposite party no. 2 cannot raise any
objection against the aforesaid orders at
this stage in this revision.

12. Now, it has to be seen whether the
ultrasound
report
dated
09.02.2007
regarding the age of the foetus of
revisionist no. 1 can be considered as
admitted and proved and can be relied upon
by the trial court for passing the impugned
order. The trial court has alluded in its
judgement that revisionist no. 1 has
admitted the genuineness and contents of
the
ultrasound
report
in
her
cross-
62 INDIAN LAW REPORTS ALLAHABAD SERIES
examination. The above referred crossexamination of P.W.1 Pinki Vishwakarma is
filed at page nos. 98 and 99 of Annexure
No. 6 to the revision which is reproduced
as hereunder :

मेरी बच्ची का नाम वैष्णवी ववश्वकमाा है। मेरी बच्ची
विनाांक 16.09.2007 को पैिा हुई। यह बच्ची प्रविभा मैटरवनटी
एण्ड आई ररसचा सेन्टर मऊ में पैिा हुई। मै अपना इलाज कराने
बनारस भी गयी थी। मैने आर्शीवाि ररसचा सेन्टर में डा० उमा गुप्ता के
यहाां से मैने अपना ईलाज कराया था। िहेज के रूप में मेरे ससुर व मेरे
पवि के नाम से पचास हजार के चेक वलये गये। चेक का नम्बर मै
नही बिा सकिी। मेरे िहेज में कोई एन०एस०सी० नही विया गया
था। िोनो अस्पिालो के जाांच ररपोटा में मेरे गभाविी होने की जो विवथ
बिायी गयी, मुझे याि नही है। मैनें 156(3) सी०आर०पी०सी० के
मुकिमें में सारे मेवडकल ररपोटा लगाये है।

मैं र्शािी के पूवा गभाविी नही थी। मेरा कोई पूवा पवि
नही है। एन०एस०सी० का भुगिान मैने करा वलया है मैं अपने पवि
अर्शोक की र्शािी के पूवा नही जानिी थी।

र्शािी के बाि मै डेढ माह िक अपने ससुराल में रही
थी।

13. From the perusal of the abovementioned
cross-examination
dated
06.03.2020 of P.W.1 Pinki Vishwakarma, it
transpires that during the cross-examination,
the ultrasound report regarding her foetus was
neither shown to P.W.1 nor she has proved the
aforesaid ultrasound report after its perusal in
the Court. She has deposed in her evidence
that she had attached all medical papers in her
application u/s 156(3) Cr.P.C. During her
cross-examination, her application u/s 156(3)
Cr.P.C. or the medical paper attached to it has
not been shown to her. Thus, it cannot be
inferred that P.W.1 Pinki Vishwakarma after
perusal of the medical report/ultrasound report
attached to her application u/s 156(3) Cr.P.C.
admitted its genuineness and ultrasound report
was duly proved according to law. The
aforesaid ultrasound report has not been
exhibited after allegedly being proved by
P.W.1 Pinki Vishwakarma.

14. Under these facts and circumstances
of the case, it cannot be considered that the
ultrasound report dated 09.02.2007 which has
shown the age of foetus to be 10 weeks old has
been duly proved. Since the ultrasound report
has not been duly proved, it cannot be
considered as proving the fact of the age of her
foetus on the date of ultrasound i.e.
09.02.2007. Thus, it cannot be concluded that
revisionist no. 1 was bearing an 11 days foetus
at the date of her marriage with opposite
party no. 2 i.e. on 12.12.2006.

15. Thus, it cannot be said that
revisionist no. 2 was not begotten with
revisionist no. 1 relation with opposite
party no. 2. Since revisionist no. 2,
Vaishnavi, was born on 16.09.2007 i.e.
after 9 months 4 days after marriage of
revisionist no.1 with opposite party no. 2,
she will be considered to have been
begotten by revisionist no. 1 with opposite
party no. 2 during the continuance of her
marriage with him.

16. Section 112 of the Indian
Evidence Act provides that birth of a child
during continuance of valid marriage
between his mother and any man or within
280 days after its dissolution, the mother
remaining unmarried shall be conclusive
proof of legitimacy of the son. Section 112
is as follows :

112. Birth during marriage,
conclusive proof of legitimacy - The fact
that any person was born during the
continuance of a valid marriage between
his mother and any man, or within two
hundred
and
eighty
days
after
its
dissolution,
the
mother
remaining
unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless
it can be shown that the parties to the
marriage had no access to each other at
3 All. Pinki Vishwakarma & Anr. Vs. State of U.P. & Anr.
63
any time when he could have been
begotten.

Section 112 of the Indian Evidence
Act provides in itself that how this
presumption about legitimacy of a child
can be rebutted by the opposite party. For
its rebuttal, it should be shown that parties
to the marriage had no access to each other
at the time when the child could have been
begotten.

17. From the above discussion, it is
proved that revisionist no. 2, Vaishnavi was
born after 9 months and 4 days of the
marriage of revisionist no.1 with opposite
party no. 2 which is less than 280 days.
Therefore, the presumption u/s 112 of the
Indian Evidence Act is applicable on the
birth of revisionist no. 2 and provides
legitimacy to her birth and raises a
presumption that she is a legitimate child of
revisionist no.1 and opposite party no. 2.
The opposite party no. 2 has failed to rebut
the presumption arising out of Section 112
of Indian Evidence Act by proving that
revisionist no.1 was bearing a foetus before
her marriage with opposite party no. 2.
Therefore, it cannot be considered that
revisionist no. 2 was not conceived from
the wedlock of revisionist no.1 with
opposite party no. 2 but from some other
person. Since, revisionist no. 2 is a
legitimate child from revisionist no.1 with
opposite party no. 2, she is entitled to
maintenance u/s 125 Cr.P.C. from opposite
party no. 2.

18. The other ground which has been
relied upon by the trial court for rejecting
the application of revisionist no. 1 u/s 125
Cr.P.C. is that she was residing separately
from opposite party no. 2 without any
reason. Thus, she is dis-entitled from
obtaining maintenance u/s 125 (4) Cr.P.C.
from opposite party no. 2. P.W.1 Pinki
Vishwakarma has deposed that after her
marriage with opposite party no. 2, she
resided in her matrimonial home for 11⁄2
months. During this period, opposite party
no. 2 and her family members pressurized
her to bring Rs.2,00,000/- cash, her father's
truck and plot of 3 biswa land situated in
front of Government Hospital on the
Ghazipur-Varanasi
main
road.
They
harassed her, beat her and threatened to
murder her and at 8 p.m. turned her out of
her matrimonial home after snatching her
jewellery. The opposite party no. 2 has
deposed that neither any demand of dowry
was made from the revisionist no.1 nor she
was harassed or beaten by his family
members at her matrimonial home. She left
her matrimonial home after living there for
4 days only. P.W.1 Pinki Vishwakarma has
also deposed in her evidence that her father
and brother made efforts for settlement
with opposite party no. 2 for 3 times but
they did not agree to let her stay at her
matrimonial home without fulfilling the
dowry demand.

19.

D.W.1
Ashok
Kumar
Vishwakarma has admitted in his evidence
that revisionist no. 1 has filed application
u/s 156 (3) Cr.P.C. regarding cruelty and
harassment for dowry against him as well
as
his
family
members. Admittedly,
opposite party no. 2 has filed a Hindu
Marriage Petition No. 31 of 2008, Ashok
Kumar
Vishwakarma
Vs.
Pinki
Vishwakarma u/s 13 of the Hindu Marriage
Act for divorce against revisionist no. 1.
The opposite party no. 2 has entered into
second marriage with daughter of Ram
Prasad Vishwakarma who is resident of
Chandausi. The name of her brothers are
Swagat and Pradeep. The revisionist no. 1
could not recall the name of second wife of
opposite party no. 2 but did mention that
64 INDIAN LAW REPORTS ALLAHABAD SERIES
the name of her brothers are Swagat and
Pradeep. The revisionist no. 1 also deposed
that since opposite party no. 2 had married
another woman, she is not prepared to live
along with her. From the analysis of the
above oral and documentary evidence, it
can be concluded that due to harassment
and cruelty met by Pinki Vishwakarma
from Ashok Kumar Vishwakarma and his
family members and his marrying another
woman, she is living separately from him.
Therefore, it cannot be concluded that she
is staying separately from Ashok Kumar
Vishwakarma without any reason. Thus,
finding in this regard arrived at by the trial
court is perverse and cannot be accepted.

20. From the perusal of the impugned
judgement and order, it transpires that the
trial court has not given any finding on the
income of Ashok Kumar Vishwakarma.
The trial court has rejected the application
u/s 125 Cr.P.C. merely on the basis of
above-mentioned three grounds that firstly,
revisionist no. 1 was pregnant at the time of
her marriage to opposite party no. 2,
secondly, revisionist no. 2, Vaishnavi is the
daughter born from the wedlock of
revisionist no. 1 and opposite party no. 2
and thirdly, revisionist no. 1 is living
separately from her husband without any
reason, therefore, she is entitled for
maintenance.

21. From the above discussion of the
evidence on record, the Court is of the
considered view that illegality has been
committed by the trial court by rejecting
the misc. case and application u/s 125
Cr.P.C. by the impugned order. The
impugned order is liable to be rejected.

22. Accordingly, the criminal revision
is allowed. The impugned judgement and
order dated 06.12.2022 passed by learned
Principal Judge, Family Court, Ghazipur, is
hereby set-aside.

23. This Court is of the view that the
trial court be directed to order afresh on
application u/s 125 Cr.P.C. in the light of
the observations made in this judgement
and after ascertaining the income of
opposite party no. 2, pass order for
maintenance
allowance
in
favour
of
revisionist nos. 1 and 2 according to law.
The trial court shall direct both the parties
to submit affidavit regarding their income
in the light of the directions given by
Hon'ble Apex Court in Rajnesh Vs. Neha
and Another, (2021) 2 SCC 324 within
one month and decide the application u/s
125 Cr.P.C. within a period of 4 months.
The parties shall appear in the trial court on
15.03.2024.

24. The copy of the judgement be
forthwith sent to the trial court for
compliance.
----------
(2024) 3 ILRA 64
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2024
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 617 of 2024

Ram Bahadur Singh ...Revisionist
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Dan Bahadur, Sri Nand Lal Yadav

Counsel for the Opposite Parties:
G.A.

Criminal Law - Juvenile Justice (Care and
Protection
of
Children)
Act,
2015
-