# Rakhi @ Rekha Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 4 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-13
- **Case number:** Criminal Revision No. 167 of 2023
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakhi-rekha-revisionist-v-state-of-u-p-anr-opp-parties-51862
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Section
127
-
Maintenance - Enhancement of - Counsel
for revisionist submitted that criminal
revision
has
been
filed
challenging
quantum of maintenance awarded, which
is meagre considering monthly income of
opposite party no.2. (husband ) who is
serving in Indian Navy and earning
Rs.35,000
-
40,000
pm
-
Further
contended that trial Court ought to have
fixed at least 25% of net monthly income
as maintenance, whereas it awarded only
Rs.4,000/- till date of order and thereafter
Rs.5,000/-, without assigning any reason
- Earlier, trial Court had ex parte granted
Rs.12,000/- pm as interim maintenance,
later on opposite party no.2 filed recall
application u/s 126(2) Cr.P.C., allowed,
hence, there was no justification for
awarding lesser amount - Held, salary slip
of opposite party no.2 shows deduction of
Rs.9,000/- towards personal loan, which
is not permissible and should be added in
his net monthly income. Hence, his net
monthly income is Rs.43,020/- - Opposite
party no.2 St.d in his reply and oral
evidence
that
he
incurs
Rs.15,00016,000/- monthly for his father's heart
and
blood
pressure
treatment
and
Rs.10,000-12,000/- for his mother's liver
ailment
-
No
documentary
evidence,
medical prescription, or medical receipts
for
purchase
of
medicines
produced,
contention rejected - Opposite party no.2
submitted that revisionist earns from
868 INDIAN LAW REPORTS ALLAHABAD SERIES
tuitions and as beautician, she has enough
money to maintain herself, but produced
no proof to substantiate claim - Impugned
order
set
aside,
thus,
prayer
for
enhancement of maintenance allowed.
(Para 3, 15 to 17, 22)

Revision allowed. (E-13)

List of Cases cited:

## Text

4 All. Rakhi @ Rekha Vs. State of U.P. & Anr.
867
Class 'B', the petitioner has prayed for a
direction for the respondents not to keep
him under surveillance and the basis of
petitioner's claim is apparently quashing of
the solitary Criminal Case No.1087 of
2006, as noted above. While reserving the
judgment
in
the
present
case
on
06.02.2024, the learned counsel for the
petitioner was permitted to implead the
Deputy Inspector General of Police of the
Range to the writ petition. Necessary
impleadment was carried out on the same
day.

36. In view of the above discussion,
while no writ of certiorari can be issued
quashing the history sheet opened against
the petitioner, the petitioner is certainly
entitled to submit a representation before
the D.I.G. concerned, as noted above.
Therefore, giving liberty to the petitioner to
file a comprehensive representation before
the D.I.G. concerned along with certified
copy
of
this
order,
ventilating
his
grievance, as per the observations made in
the present order, the petition stands
disposed off with a direction that, in case,
such a representation is filed within a
period of one month from the date of
delivery of this judgment, the D.I.G.
concerned shall pass a reasoned and
speaking order strictly in consonance with
Regulations 232 and 233 and any other
relevant Regulation of the U.P. Police
Regulations, after dealing with each and
every ground raised before him by the
petitioner through his representation, within
a period of next two months after providing
opportunity of personal hearing to the
petitioner and after summoning relevant
records from the concerned police station.
----------
(2024) 4 ILRA 867
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.03.2024
BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Revision No. 167 of 2023

Rakhi @ Rekha ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Jayant Kumar, Sri Kanhiya Lal Chauhan

Counsel for the Opp. Parties:
G.A., Sri Sandeep Kumar Srivastava

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
127
-
Maintenance - Enhancement of - Counsel
for revisionist submitted that criminal
revision
has
been
filed
challenging
quantum of maintenance awarded, which
is meagre considering monthly income of
opposite party no.2. (husband ) who is
serving in Indian Navy and earning
Rs.35,000
-
40,000
pm
-
Further
contended that trial Court ought to have
fixed at least 25% of net monthly income
as maintenance, whereas it awarded only
Rs.4,000/- till date of order and thereafter
Rs.5,000/-, without assigning any reason
- Earlier, trial Court had ex parte granted
Rs.12,000/- pm as interim maintenance,
later on opposite party no.2 filed recall
application u/s 126(2) Cr.P.C., allowed,
hence, there was no justification for
awarding lesser amount - Held, salary slip
of opposite party no.2 shows deduction of
Rs.9,000/- towards personal loan, which
is not permissible and should be added in
his net monthly income. Hence, his net
monthly income is Rs.43,020/- - Opposite
party no.2 St.d in his reply and oral
evidence
that
he
incurs
Rs.15,00016,000/- monthly for his father's heart
and
blood
pressure
treatment
and
Rs.10,000-12,000/- for his mother's liver
ailment
-
No
documentary
evidence,
medical prescription, or medical receipts
for
purchase
of
medicines
produced,
contention rejected - Opposite party no.2
submitted that revisionist earns from
868 INDIAN LAW REPORTS ALLAHABAD SERIES
tuitions and as beautician, she has enough
money to maintain herself, but produced
no proof to substantiate claim - Impugned
order
set
aside,
thus,
prayer
for
enhancement of maintenance allowed.
(Para 3, 15 to 17, 22)

Revision allowed. (E-13)

List of Cases cited:

1. Anju Garg & anr. Vs Deepak Kumar Garg:
(2022) SCC OnLine SC 1314, (Paras 9 to 11)

2. Dr. Kulbhushan Kumar Vs Smt. Raj Kumari:
(1970) 3 SCC 129

3. Shailja & anr. Vs Khobbanna: (2018) 12 SCC
199

4. Kalyan Dey Chowdhury Vs Rita Dey
Chowdhury Nee Nandy: (2017) 14 SCC 200

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

By means of the instant criminal
revision,
revisionist
has
assailed
the
judgement and order dated 01.11.2022
passed by Principal Judge, Family Court,
Amroha in Case No.05 of 2019 (Smt.
Rakhi vs. Amit Kumar), under Section 125
Cr.P.C., Police Station Amroha, District
Amroha.

2. By the impugned order, the trial
Court has granted monthly maintenance
allowance of Rs.5,000/- to the revisionist
from the date of presentation of application
under Section 125 Cr.P.C. The revisionist
has
prayed
for
enhancement
of
maintenance allowance granted by the trial
Court in her favour. The opposite party
No.2 has not challenged the aforesaid
impugned order, therefore, findings in the
impugned judgment and findings regarding
the marriage of the revisionist with
opposite party No.2 as well as there being
sufficient reason for her residing away
from the opposite party No.2, has become
final.

3. It has been submitted by the
learned counsel for the revisionist that this
criminal revision has been filed on the
point of quantum of maintenance payable
to the revisionist contending that it is quite
meagre considering the monthly net income
of the opposite party No.2 (husband). The
averments have been made on behalf of the
revisionist that admittedly opposite party
No.2 is working in Indian Navy and he is
getting monthly salary of about Rs.35,000/-
to 40,000/- per month. The trial Court may
have fixed at-least 25 % of the net monthly
salary of the opposite party No.2, but trial
Court has awarded maintenance allowance
of Rs.4000/- till date of order, and
thereafter, Rs.5000/-, which is on the lower
side. It has also been submitted that trial
Court has not given any reason for fixing
aforesaid monthly maintenance allowance
payable to the revisionist. It has also been
submitted that earlier trial Court vide
judgment and order dated 11.02.2020 had
ex-parte granted Rs.12,000/- per month as
interim maintenance allowance to the
revisionist. Later on, recall application
under Section 126 (2) Cr.P.C. was filed by
the opposite party No.2, which was allowed
and there is no ground to provide the
revisionist lesser monthly maintenance
allowance than the interim one, since the
trial Court passed the impugned judgment
and order without considering the evidence
on record and without applying judicial
mind it should be enhanced.

4. Per contra, learned counsel for the
opposite party No.2 has submitted that trial
Court has passed the impugned judgment
and order on the basis of oral and
documentary evidence on record and there
is no ground to make interference into it. It
4 All. Rakhi @ Rekha Vs. State of U.P. & Anr.
869
has also been submitted that interim
maintenance was passed ex-parte without
considering the contentions raised by the
opposite party No.2. The trial Court has
rightly granted a reasonable maintenance
allowance, which is not liable to be altered.

5. Learned counsel for the opposite
party No.2 has raised objection about the
maintainability of the criminal revision and
contended that the revisionist should have
filed an application under Section 127
Cr.P.C. in the trial Court itself for
enhancement of the amount of monthly
maintenance allowance. It has also contended
that since there is a statutory provision for
enhancement of the amount of maintenance
allowance under Section 127 Cr.P.C., the
criminal revision for such enhancement is not
maintainable in this Court.

6. Heard Sri Jayant Kumar, learned
counsel for the revisionist, learned A.G.A. for
the State and Sri Sandeep Kumar Srivastava,
learned counsel for opposite party no.2.

7. The revisionist has filed instant
criminal revision for enhancement of the
amount of monthly maintenance allowance
not
on
the
ground
of
change
of
circumstances, since the order was passed
but on the ground that the trial court while
fixing the amount of monthly maintenance
allowance has not considered the evidence
on record, therefore, order passed is illegal
or liable to be altered.

8. Learned counsel for the opposite
party No.2 has raised preliminary objection
as per jurisdiction of this Court in view of the
provision given in Section 127 Cr.P.C. for
enhancement of maintenance allowance.

9. Section 127 Cr.P.C. provides for
alteration of maintenance allowance or
interim maintenance allowance on the
ground that circumstances have been
changed since the order was passed.

10. Section 127 Cr.P.C., provides for
alteration of maintenance allowance in the
following circumstances:-

(i) The Magistrate finds that
competent civil court has passed any order
due to which maintenance allowance
granted has to be cancelled or modified;

(ii) The woman in whose favour
maintenance
allowance
has
been
provided, has remarried after obtaining
divorce such order of maintenance can be
cancelled from the date of her remarriage;

(iii) Such woman has received
whole of the sum which, under any
customary or personal law applicable to
the parties, was payable on such divorce;

(iv) The woman has obtained
divorce from her husband and she had
voluntarily surrendered her rights to
maintenance or interim maintenance, as
the case may be, after her divorce, cancel
the order from the date thereof.

11. The alteration of maintenance
allowance under Section 127 Cr.P.C. can
be done by the trial Court on the ground of
change of circumstances as mentioned in
that section. In case, the person in whose
favour maintenance allowance is passed,
assailing the amount of maintenance
allowance on the ground that it was fixed
against the evidence on record, he/she can
file criminal revision to this Court and
Court shall has jurisdiction to decide it.

12. The opposite party No.2 has
annexed his monthly salary slip as
870 INDIAN LAW REPORTS ALLAHABAD SERIES
Annexure-SA-I
to
his
supplementary
counter affidavit. According to his salary
slip, after deducting other expenses, he gets
Rs.34,020/- per month in hand. From the
perusal of the pay slip filed by the opposite
party No.2, which is annexed as Annexure
No.S.A.1 to the supplementary counter
affidavit, it is found that gross monthly
salary of the opposite party No.2 is of
Rs.54,684/-, in which total amount of
Rs.20,664/- is deducted and balance of
Rs.34,020 is credited in the account of
opposite party No.2. In the statement of
salary slip filed by the opposite party No.2,
the amount deducted under different heads
is not legible, only total deduction of
Rs.20,664/- is legible. The opposite party
No.2 submitted, in his counter affidavit,
that he has taken personal loan of Rs.5
lakhs, for which he has to pay instalment of
Rs.9000/- per month.

13. The Hon'ble Apex Court has held
in paragraph No.9 and 10 of the judgement
in Anju Garg and Another vs. Deepak
Kumar Garg: (2022) SCC OnLine SC
1314, 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. Meena1. 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
4 All. Rakhi @ Rekha Vs. State of U.P. & Anr.
871
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."

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 in Capt.
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".

10. This Court had made the
above observations as the Court felt that
the Family Court in the said case had
conducted the proceedings without being
alive to the objects and reasons, and the
spirit of the provisions under Section 125
of the Code. Such an impression has also
been gathered by this Court in the case on
hand. The Family Court had disregarded
the basic canon of law that it is the
sacrosanct duty of the husband to provide
financial support to the wife and to the
minor children. The husband is required
to earn money even by physical labour, if
he is an able-bodied, and could not avoid
his obligation, except on the legally
permissible grounds mentioned in the
statute. In Chaturbhuj v. Sita Bai2, it has
been held that the object of maintenance
proceedings is not to punish a person for
his past neglect, but to prevent vagrancy
and destitution of a deserted wife, by
providing her food, clothing, and shelter
by a speedy remedy. As settled by this
Court, Section 125 Cr.P.C. is a measure of
social justice and is specially enacted to
protect women and children. It also falls
within the Constitutional sweep of Article
15(3), reinforced by Article 39 of the
Constitution of India."

14. The Hon'ble Apex Court in Dr.
Kulbhushan
Kumar
vs.
Smt.
Raj
Kumari: (1970) 3 SCC 129 has held that
only statutory deductions as income tax can
be reduced from the gross salary, which
have to be made compulsory. No deduction
is permissible for payment of house rent,
electricity charge, contribution of provident
fund, instalments towards payment of loan
and expenses for maintaining the car.

15. From the salary slip of opposite
party No.2, it appears that deduction of
Rs.20,664/- includes inter alia for house
872 INDIAN LAW REPORTS ALLAHABAD SERIES
rent, payment of instalment of personal
loan of Rs.9000/- per month. Therefore,
deduction of Rs.9000/- per month made for
payment to the monthly instalment of
personal loan is not permissible and it
should be added in the net monthly
income of the opposite party No.2. Thus,
his net monthly income be comes
Rs.34020 +Rs.9000/- i.e. Rs.43,020/-

16. In reply to the application filed
under Section 125 Cr.P.C. as well as in
the oral evidence produced by the
opposite party No.2, he has submitted
that his father is patient of heart and
blood pressure, for which he has to spend
Rs.15,000 to 16,000/- per month for
medicine and he also submitted that his
mother is also suffering from liver
disease and her treatment is going on, for
which, he has to spend Rs.10,000/- to
12,000/- per month. In this regard, no
documentary evidence, prescription of
doctor and medicine receipts for purchase
of medicines have been filed by the
opposite party No.2, therefore, this
cannot be accepted that for treatment of
his parents, he has spent aforesaid
amount on medicine.

17. Opposite party No.2, in his reply
as well as oral evidence, has submitted
that revisionist is B.A. pass and earns
Rs.10,000/- per month by taking tuition
and she has done course of beautician, by
which she can also earn money and she
has enough money to maintain herself,
but opposite party No.2 has not produced
any documentary evidence in support of
earning of the revisionist.

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

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

19. Considering the above law laid
down by the Hon'ble Apex Court merely
on the ground that revisionist is B.A. pass
and has done some professional course, no
presumption can be drawn that she is
earning sufficient money to maintain
herself. Thus the plea advanced on behalf
of the opposite party No.2 (husband) is
without any legal basis.

20. In Kalyan Dey Chowdhury vs.
Rita Dey Chowdhury Nee Nandy: (2017)
14 SCC 200, the Hob'ble Apex Court has
held that 25% of the husband's net salary
would be just and proper to be awarded as
maintenance to the wife. The amount of
permanent alimony awarded to the wife
must be befitting the status of the parties
and the capacity of the spouse to pay
maintenance.

21. In view of the aforesaid factual
and legal aspect, I am of the view that the
order impugned dated 01.11.2022 is
erroneous and cannot survive in the eyes of
law, therefore, I set aside the impugned
order for the aforesaid reasons.

22. The prayer for enhancement of
maintenance allowance made by revisionist
is allowed and it is observed that she will
be entitled for Rs.10,000/- per month,
4 All. Vishwanath Vs. State of U.P. & Ors.
873
which is approximately 25 % of the next
monthly
income
of
Rs.43,020/-,
as
maintenance allowance.

23. Thus, opposite party No.2 shall be
bound to provide maintenance allowance of
Rs.10,000/-
per
month
to
his
wife
(revisionist) from the date of application.
The arrears of maintenance allowance shall
be paid by the opposite party No.2 in four
equal instalments within a period of four
months. The monthly interim maintenance
shall be paid regularly till 7th day of each
month.

24. The present criminal revision is
allowed in terms of above mentioned
conditions.

25. The copy of the order be sent to
the trial Court concerned for necessary
compliance, forthwith.
----------
(2024) 4 ILRA 873
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.03.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 185 of 2023

Vishwanath ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri Ganesh Kumar

Counsel for the Opp. Parties:
Sri Alok Singh, G.A., Sri Phool Chandra
Singh, Ms. Sumitra Singh

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3) & 195
- Against rejection of application for
registering Criminal Case - Perusal of
impugned order reveals that Trial Court
rejected application u/s 156(3) Cr.P.C.
on ground that revisionist sought
registration of FIR against opposite
parties Nos. 2 and 3 for fraud and
forgery,
alleging
that
despite
cancellation of disputed Will by Civil
Judge (Senior Division) they filed false
affidavit
and

forged
will
before
Tehsildar, Sadar and got their names
mutated
in
revenue
records
-
In
impugned order, Trial Court held that
registration of FIR for filing forged
documents
in
Court
proceedings
is
barred
u/s
195(1)(b)(i)
Cr.P.C.,
observing that for such offences, only
complaint by concerned Court can be
instituted,
in
whose
judicial
proceedings, false affidavit or forged
documents have been filed, hence, no
direction for registration of FIR could be
passed - Perusal of application u/s
156(3)
Cr.P.C.
reveals
that
alleged
forgery in affidavit and will deed was
prepared outside Court, and forged
documents were later filed in judicial
proceedings in a case pending in Court
- Hence, bar against taking cognizance
of criminal case u/s 195(1)(b)(i) Cr.P.C.
is not attracted in instant case - In view
of law laid down by Apex Court in
Sachida Nand Singh (infra), Magistrate
erred in holding that Section 195(1)(b)
Cr.P.C. bars registration of FIR even
where alleged forgery committed outside
Court
and

forged
document
subsequently filed in judicial proceedings
- Magistrate neither assigned any other
reason for rejecting application u/s
156(3) Cr.P.C. nor considered contention
regarding registration of criminal case for
alleged forged affidavit and false Will -
Thus, impugned order set aside. (Para 8,
9, 11, 13, 14)

Revision allowed. (E-13)

List of Cases cited:

1. All Cargo Movers (I) Pvt. Ltd. & ors. Vs
Dhanesh Badarmal Jain & anr.: (2007) 14 SCC
776