# Ram Dulare Revisionist v. Raj Kumari - **Citation:** (2016) 3 ILRA 824 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-16 - **Case number:** Criminal Revision No. 3453 of 2014 - **Bench:** Amar Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dulare-revisionist-v-raj-kumari-43609 - **Pages:** 6 ## Headnote (1) Criminal Procedure Code, 1973 - S. 125 - Maintenance to wife - Object and scope.Provision under Section 125 Cr.P.C. is a measure of social justice intended to prevent vagrancy and destitution - It gives effect to constitutional mandate under Articles 15(3) and 39 of the Constitution - Wife unable to maintain herself is entitled to maintenance if husband has sufficient means and neglects or refuses to maintain her - Plea of lack of means by able-bodied husband not acceptable - Principles reiterated. (Paras 10-11) (2) Criminal Procedure Code, 1973 - S. 125 - Sufficient means - Able-bodied husband.Mere absence of visible means, employment or property does not absolve husband from liability to pay maintenance - If husband is healthy and capable of earning, law presumes capacity to maintain wife - Avoidance of obligation without sufficient cause attracts liability under Section 125(3) Cr.P.C. - Maintenance awarded to wife upheld. (Paras 10, 12) (3) Criminal Procedure Code, 1973 - S. 125(4) - Living in adultery - Proof.Rejection of maintenance claim of minor child does not by itself establish that wife is living in adultery - "Living in adultery" denotes continuous and quasi-permanent adulterous conduct - Single or stray lapse insufficient - Burden lies on husband to prove continued adulterous life beyond reasonable doubt - In absence of such proof, wife not disentitled to maintenance. (Paras 13-14, 16) (4) Criminal Revision- Interference - Scope - Revisional court not to interfere with findings of fact unless order suffers from illegality, perversity or material irregularity - Family Court having properly appreciated evidence, grant of maintenance to wife affirmed. (Paras 16-17) In Result- Revision dismissed. Case Law discussed: Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636. K. Veeriah Vs. Muthulakshmi and others, 1999 Cr.L.J. 624 Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015 ## Text 824 INDIAN LAW REPORTS ALLAHABAD SERIES and may also determine the interest or penalty, if any, payable or impassable accordingly: Provided further that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in clauses (ii), (iia) and (iii) or any part thereof, the Income Tax Officer may, with the previous approval of the Chief Commissioner or Commissioner, release the assets or such part thereof as he may deem fit in the circumstances of the case." 12.It may be stated that Section 132 (5) has specifically been omitted w.e.f. 1.6.2002 but it was existing when proceedings of case in hand were initiated, hence its subsequent omission would not be affected. On a reading section 132-A (1) (c), 2 and 3 read with section 132(5) of Act 1961, I am clearly of opinion, if any assets has been seized by Police Officer, same can be requisitioned by Authorized Person under section 132A and when amount is remitted and delivered to Authorized Person of Income Tax department, it would be deemed to be a seizure of assets under sub-section (1) of Section 132A by Requisitioned Officer and will be governed by other provisions of Act 1961. At the time when application was filed by opposite party-1 and 2 before Magistrate, Competent authority has already requisitioned assets under section 132A from Police officials, who had thereafter delivered the same to competent authority of Income Tax department. So there was no occasion to seek release of such assets from police and that too without impleading Income Tax Department. Money so seized can be released by competent authority under provisions of Act 1961. 13. Thus, I am of the view that no application for release of money before Magistrate/Session Court under provisions of Cr.P.C. was maintainable. The order passed by Session Judge, thus, cannot be sustained. 14. Revision is allowed. 15. Impugned order passed by Session Judge, Mau is hereby set aside. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 16.03.2016 BEFORE THE HON'BLE AMAR SINGH CHAUHAN, J. Criminal Revision No. 3453 of 2014 Ram Dulare ...Revisionist Versus Raj Kumari ...Opposite Party Counsel for the Revisionist: C. P. Srivastava 3 All. Ram Dulare Vs Raj Kumari 825 (1) Criminal Procedure Code, 1973 - S. 125 - Maintenance to wife - Object and scope.Provision under Section 125 Cr.P.C. is a measure of social justice intended to prevent vagrancy and destitution - It gives effect to constitutional mandate under Articles 15(3) and 39 of the Constitution - Wife unable to maintain herself is entitled to maintenance if husband has sufficient means and neglects or refuses to maintain her - Plea of lack of means by able-bodied husband not acceptable - Principles reiterated. (Paras 10-11) (2) Criminal Procedure Code, 1973 - S. 125 - Sufficient means - Able-bodied husband.Mere absence of visible means, employment or property does not absolve husband from liability to pay maintenance - If husband is healthy and capable of earning, law presumes capacity to maintain wife - Avoidance of obligation without sufficient cause attracts liability under Section 125(3) Cr.P.C. - Maintenance awarded to wife upheld. (Paras 10, 12) (3) Criminal Procedure Code, 1973 - S. 125(4) - Living in adultery - Proof.Rejection of maintenance claim of minor child does not by itself establish that wife is living in adultery - "Living in adultery" denotes continuous and quasi-permanent adulterous conduct - Single or stray lapse insufficient - Burden lies on husband to prove continued adulterous life beyond reasonable doubt - In absence of such proof, wife not disentitled to maintenance. (Paras 13-14, 16) (4) Criminal Revision- Interference - Scope - Revisional court not to interfere with findings of fact unless order suffers from illegality, perversity or material irregularity - Family Court having properly appreciated evidence, grant of maintenance to wife affirmed. (Paras 16-17) In Result- Revision dismissed. Case Law discussed: Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636. K. Veeriah Vs. Muthulakshmi and others, 1999 Cr.L.J. 624 Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015 (Delivered by Hon'ble Amar Singh Chauhan, J.) 1. This Criminal Revision has been filed by the revisionist Ram Dulare against the order dated 30.9.2014 passed by the Additional Principal Judge/Additional District Judge, Court No. 3, Allahabad whereby the application filed by Smt. Raj Kumari, wife of the revisionist under section 125 of Code of Criminal Procedure has been partly allowed and the revisionist was directed to pay a sum of Rs. 1000/- (rupees one thousand only) per month to his wife Smt. Raj Kumari. By the same order, the learned Additional District Judge, Court No. 3, Allahabad declined to grant any maintenance to Karan, son of Smt. Raj Kumari. 2.The facts which are requisite to be stated for adjudication of this revision are that an application under section 125 Code of Criminal Procedure was moved by Smt. Raj Kumari stating therein that her marriage took place about 23 years back with Ram Dulare and they lived together as husband and wife. From their wedlock seven children were born, out of them, two have left for heavenly abode, one small child Karan is living with her and the remaining four children are living with Ram Dulare, the revisionist herein. On 30.5.2001 the 826 INDIAN LAW REPORTS ALLAHABAD SERIES revisionist after beating and taking her ornaments, kicked her out of his house. Since then she is living in her parental house. She further stated in the application that the revisionist Ram Dulare lends money on interest and also deals with the business of gold and silver ornaments. He earns about Rs. 25,000/- per month. 3.The revisionist-Ram Dulare filed his reply in which some of the points raised in the application under section 125 Cr.P.C. were accepted and some of them denied. The revisionist has accepted his marriage with opposite party No. 1 Raj Kumari. He has stated that only six children were born from the wedlock of the revisionist and opposite party No. 1, out of them, two have died and remaining four children namely Ansuiya Devi, Neeraj Kumar, Km. Gauri and Suraj Kumar are living with the revisionist. Opposite party No. 1 had herself left the house with one Rajendra Kumar alias Pappu on 20.6.1999 taking away her clothes and ornaments. When opposite party No. 1 could not be traced out in spite of hectic search, an application was given to the concerned police station and thereafter to the Senior Superintendent of Police. On 16.9.2005, when opposite party No. 1 came to the house of the revisionist along with a small child, she was not allowed to enter into the house by the children of the revisionist. 4.The learned Additional Principal Judge/Additional District Judge, Court No. 3, Allahabad after evaluating the evidence adduced by the parties, granted maintenance to the wife, opposite party No. 1 at the rate of Rs. 1000/- (rupees one thousand) per month. By the same order the learned Judge has rejected the claim of maintenance to her minor son Karan. 5. Heard Shri C.P. Srivastava, learned counsel for the revisionist and Ms Babita Upadhyay and Shri Sanjeev Kumar Gaur, learned counsel appearing for Opposite Party No. 1 and learned Additional Government Advocate for the State. 6. Learned counsel for the revisionist submits that by the impugned order learned Family Judge while granting maintenance to the wife, rejected the claim of maintenance of her minor son Karan, which goes to suggest that opposite party Raj Kumari is living in adultery and is not entitled for any maintenance. 7. Learned counsel for the revisionist has further submitted that the learned Additional Principal Judge/Additional District Judge has erred in granting maintenance to opposite party No. 1, Smt. Raj Kumari. 8. Per contra, learned counsel for Opposite Party No. 1 submits that opposite party No. 1 was kicked out of the house on 30.5.2001 along with her minor son Karan. Learned counsel has also filed the birth certificate issued under the signature of the Chief Medical Superintendent, Women Hospital, Allahabad in which the father's name of the newly born child was mentioned as Ram Dulare. 9. Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.: 3 All. Ram Dulare Vs Raj Kumari 827 Order for maintenance of wives, children and parents 125. (1) If any person having sufficient means neglects or refuses to maintain- his wife, unable to maintain herself, or His legitimate or illegitimate minor child, whether married or not unable to maintain itself, or 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 his father or mother, unable to maintain himself or herself, 9.a Magistrate of 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 as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct." 10. There can be no shadow of doubt that an order under section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife. 11. Hon'ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The court held as under: " 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. Veena Kaushal, (1978) 4 SCC 70 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. 12. A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded 828 INDIAN LAW REPORTS ALLAHABAD SERIES under Section 125(1), as even at the stage of enforcement of the order under Section125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C.. 13. It is further contended by the learned counsel for the revisionist that claim of maintenance of child Karan was rejected, which shows that the applicant-Smt. Raj Kumari is living in adultery. 14. A Division Bench of Madras High Court in the case of K. Veeriah Vs. Muthulakshmi and others, 1999 Cr.L.J. 624, while dealing with the ground of living in adultery has held as under: "The term "adultery" is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie. "Living in adultery"- mere friendship with a man does not amount to adultery within the meaning of Section 125 (4) Cr.P.C.. "Living in adultery" means the following of a course of continuous adulterous conduct. While determining the factum of "Living in adultery" the Court must consider evidence on living in quasi-permanent union with man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, by living in quasi permanent union with her paramour. In other words, "living in adultery" means an outright adulterous conduct where the wife lives in a quasi permanent union with a man with whom she is committing adultery, shortly before or after the petition for maintenance. It is only when the husband proves satisfactorily beyond reasonable doubt that his wife was living in adultery, she will not be entitled to maintenance and not otherwise. When an allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of "living in adultery." The words "living in adultery" are merely indicative of the principle that a single or occasional lapse from virtue is not a sufficient reason for refusing maintenance. To reiterate the continued adulterous conduct is what is meant by "living in adultery." 15. In a recent decision of Hon'ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon'ble Supreme Court has held as under: "A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 3 All. Imtiyaz Vs State 829 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar." 16. After going through the record, it is vivid that the applicant-opposite party is the wedded wife of the revisionist, but she failed to prove that Karan is legitimate or illegitimate child of the revisionist, which does not mean that she is or was living in adultery. In this case the revisionist has failed to prove that his wife, Smt. Raj Kumari without any sufficient reason, refused to live with him and that she is able to maintain herself. 17. In view of what has been indicated herein above, I find that the impugned order does not suffer from any illegality or impropriety. The revision lacks merits. It is accordingly dismissed. 18. Interim order dated 20.11.2014 stands discharged. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 02.03.2016 BEFORE THE HON'BLE HULUVADI G. RAMESH, J. THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Criminal Appeal No. 2642 of 1982 & Connected With Other Cases Imtiyaz ...Appellant Versus State ...Respondent Counsel for the Appellant: V.P. Srivastava, S.S.A. Azmi, Kesav Sahai, P. K. Singh Counsel for the Respondent: A.G.A. 1. Indian Penal Code, 1860 - Ss. 302/34 - Murder - Appreciation of evidence - Related witnesses.Conviction based on testimony of brother of deceased and another related eyewitness - Non-examination of independent witnesses though incident occurred at public place - One named eyewitness turning hostile - Held, relationship of a witness with deceased does not by itself render testimony unreliable - Distinction between "related" and "interested" witnesses reiterated - Evidence of PW-2 and PW-6 found consistent, natural and corroborated by prompt FIR and medical evidence - Non-examination of independent witnesses not fatal in case of gruesome and daring murder in public view. (Paras 20-24) (2) Indian Penal Code, 1860 - S.34 - Common intention - Motive - Identification.Previous night altercation over business accounts proved - NCR lodged by co-accused prior to incident naming deceased - Motive sufficiently established - Even otherwise, where direct ocular evidence exists,