# Ram Kumar Mishra Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-02
- **Case number:** Criminal Revision No. 4777 of 2023
- **Bench:** Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-mishra-revisionist-v-state-of-u-p-anr-49405
- **Pages:** 13

## Headnote

G.A.,
Sri
M.
Asif
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
111
Criminal Law - Protection of Women from
Domestic Violence Act, 2005 - Sections
2(f), 2(s), 12, 23 & 29 - Code of Criminal
Procedure, 1973 - Sections 125, 397 &
401 - Maintenance - Interim Maintenance -
Shared Household - Criminal Revision -
Maintainability
-
Compromise
in
Prior
Proceedings

The revisionist challenged the orders dated
08.04.2022 and 27.07.2023 passed by the Civil
Judge
(Junior
Division)/F.T.C./W.P./Judicial
Magistrate, Pilibhit, and the Additional Sessions
Judge, Court No. 3, Pilibhit, respectively,
directing him to pay interim maintenance of Rs.
3,000/- per month to Opposite Party No. 2 (his
wife) under Section 23 of the Protection of
Women from Domestic Violence Act, 2005 (D.VS
Act). The revisionist argued that a prior
compromise in 2009 under Section 125 Cr.P.C.,
where Opposite Party No. 2 received Rs.
1,50,000/- as permanent alimony and agreed to
end litigation, barred her from seeking further
maintenance,
especially
since
she
lived
separately since 2009 and did not reside in a
shared household. He further contended that
the courts below failed to apply judicial mind,
ignored the compromise, and passed orders
based on insufficient evidence. Opposite Party
No. 2 and the St. argued that the revision was
maintainable under Sections 397/401 Cr.P.C., as
per the Full Bench decision in Dinesh Kumar
Yadav Vs St. of U.P., and that no legal bar
prevented maintenance under the D.VS Act
despite the prior compromise, as the revisionist
remained her husband, and she was unable to
maintain herself. Held: (1) The criminal revision
was dismissed, upholding the orders of the
courts below. (2) The revision was maintainable
under Sections 397/401 Cr.P.C. against the
appellate order under Section 29 of the D.VS
Act, as clarified by Dinesh Kumar Yadav Vs St.
of U.P.. (3) The prior compromise under Section
125 Cr.P.C. did not bar Opposite Party No. 2
from seeking maintenance under the D.VS Act,
as the remedies under different statutes
(Cr.P.C., D.VS Act, Hindu Marriage Act) are
independent and not mutually exclusive, as held
in Nagendra Natikar Vs Neelamma and Rajnesh
Vs Neha. (4) The definition of "shared
household" under Section 2(s) of the D.VS Act
includes a household where the aggrieved
person lived at any stage, and physical presence
at the time of filing is not mandatory, as
clarified in Juveria Abdul Majid Patni Vs Atif
Iqbal Mansoori and Vandhana Vs T. Srikanth.
(5) Opposite Party No. 2, as the legally wedded
wife living separately since 2009, was entitled to
seek relief under the D.VS Act, as prior
cohabitation satisfied the domestic relationship
requirement. (6) The courts below correctly
assessed the evidence, including Opposite Party
No. 2's inability to maintain herself after her
father's death, and no illegality or perversity
was found in the impugned orders. (7) No costs
were awarded.

Case Law Cited:

## Text

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110 INDIAN LAW REPORTS ALLAHABAD SERIES
may ultimately be arrived at, as the basis
for exercising the revisional jurisdiction
which was impermissible.

Fourthly, the purported loans
said to have been obtained by the
respondent accused from his mother,
brother and father are all question of facts
which requires adjudication and this could
be done only during trial and the
explanation relating to borrowing of large
sums raises a reasonable suspicion, which
has been termed by the Investigating
Agency as strong material to file the charge
sheet and based on such material the
sanctioning authority also recorded its
satisfaction under sanction order dated:
05.03.2015 to prosecute the respondentaccused.
Hence,
raising
reasonable
suspicion cannot be held or construed at
the primary stage for discharging the
accused.

17. The plea or the defence when
requiring to be proved during course of
trial is itself sufficient for framing the
charge. In the instant case, the learned
Trial Judge has noticed that explanation
provided by the respondent accused
pertaining to purchase of shop No.7 of
Suman City Complex of plot No.19,
Sector-11 from the loan borrowed and
paid by the respondent was outside the
check period and hence the explanation
provided by respondent is a mere eye
wash.

This is an issue which has to be
thrashed out during the course of the trial
and at the stage of framing the charge
mini trial cannot be held. That apart the
explanation offered by the respondent
accused with regard to buying of Maruti
Wagon-R car, Activa scooter, purchase of
house etc., according to the prosecution
are all the subject matter of trial or it is in
the nature of defence which will have to be
evaluated after trial.

18.
In
the
afore-stated
circumstances we are of the considered
view that High Court had committed a
serious error in interfering with the wellreasoned order passed by the trial court.
Hence, the impugned judgment dated
11.01.2018 passed in Criminal Revision
Application No.387 of 2016 setting aside
the trial court order dated 13.04.2016
requires to be set aside and accordingly it
is set aside and appeal is allowed."

23. On the evaluation and deeper
scrutiny of the submissions made by the
learned counsel for the parties, the case
laws cited and quoted above as also the
records of the present criminal revision,
this Court does not find any good ground to
interfere with the order impugned.

24. As a result, the present Criminal
Revision filed by applicant/revisionist are
liable to be dismissed.

25. It is, accordingly, dismissed.

26. There shall be no orders as to cost.
----------
(2023) 11 ILRA 110
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2023
BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 4777 of 2023

Ram Kumar Mishra ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ashutosh Tiwari

Counsel for the Opposite Parties:
G.A.,
Sri
M.
Asif
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
111
Criminal Law - Protection of Women from
Domestic Violence Act, 2005 - Sections
2(f), 2(s), 12, 23 & 29 - Code of Criminal
Procedure, 1973 - Sections 125, 397 &
401 - Maintenance - Interim Maintenance -
Shared Household - Criminal Revision -
Maintainability
-
Compromise
in
Prior
Proceedings

The revisionist challenged the orders dated
08.04.2022 and 27.07.2023 passed by the Civil
Judge
(Junior
Division)/F.T.C./W.P./Judicial
Magistrate, Pilibhit, and the Additional Sessions
Judge, Court No. 3, Pilibhit, respectively,
directing him to pay interim maintenance of Rs.
3,000/- per month to Opposite Party No. 2 (his
wife) under Section 23 of the Protection of
Women from Domestic Violence Act, 2005 (D.VS
Act). The revisionist argued that a prior
compromise in 2009 under Section 125 Cr.P.C.,
where Opposite Party No. 2 received Rs.
1,50,000/- as permanent alimony and agreed to
end litigation, barred her from seeking further
maintenance,
especially
since
she
lived
separately since 2009 and did not reside in a
shared household. He further contended that
the courts below failed to apply judicial mind,
ignored the compromise, and passed orders
based on insufficient evidence. Opposite Party
No. 2 and the St. argued that the revision was
maintainable under Sections 397/401 Cr.P.C., as
per the Full Bench decision in Dinesh Kumar
Yadav Vs St. of U.P., and that no legal bar
prevented maintenance under the D.VS Act
despite the prior compromise, as the revisionist
remained her husband, and she was unable to
maintain herself. Held: (1) The criminal revision
was dismissed, upholding the orders of the
courts below. (2) The revision was maintainable
under Sections 397/401 Cr.P.C. against the
appellate order under Section 29 of the D.VS
Act, as clarified by Dinesh Kumar Yadav Vs St.
of U.P.. (3) The prior compromise under Section
125 Cr.P.C. did not bar Opposite Party No. 2
from seeking maintenance under the D.VS Act,
as the remedies under different statutes
(Cr.P.C., D.VS Act, Hindu Marriage Act) are
independent and not mutually exclusive, as held
in Nagendra Natikar Vs Neelamma and Rajnesh
Vs Neha. (4) The definition of "shared
household" under Section 2(s) of the D.VS Act
includes a household where the aggrieved
person lived at any stage, and physical presence
at the time of filing is not mandatory, as
clarified in Juveria Abdul Majid Patni Vs Atif
Iqbal Mansoori and Vandhana Vs T. Srikanth.
(5) Opposite Party No. 2, as the legally wedded
wife living separately since 2009, was entitled to
seek relief under the D.VS Act, as prior
cohabitation satisfied the domestic relationship
requirement. (6) The courts below correctly
assessed the evidence, including Opposite Party
No. 2's inability to maintain herself after her
father's death, and no illegality or perversity
was found in the impugned orders. (7) No costs
were awarded.

Case Law Cited:

1. Dinesh Kumar Yadav Vs St. of U.P., Criminal
Revision
No.
582
of
2016,
decided
on
27.10.2016 (All. HC, Lucknow)

2. Nagendra Natikar Vs Neelamma, (2013) 0
Supreme (SC) 253

3. Sunil Sachdeva Vs Rashmi & anr., (2023) 1
Crimes (HC) 7

4. Chandrabhushan Vs Smt. Savita Bai, FAM No.
03
of
2017,
decided
on
11.11.2021
(Chhattisgarh HC)

5. Rajnesh Vs Neha & anr., (2021) 2 SCC 324

6. Ramchandra Laxman Kamble Vs Shobha
Ramchandra Kamble & anr., 2018 SCC OnLine
Bom 7039

7. Shahnaz Bano Vs Babbu Khan, 1985 Mh.L.J.
853

8. Rameshwar Vs St. of Maharashtra, 2018 (4)
Mh.L.J. (Cri.)

9. Tejaswini Vs Chandrakant Kisanrao Shirsat,
2005 (3) Mh.L.J. 137

10. Mahesh Chandra Dwivedi Vs St. of U.P. &
anr., (All. HC)

11. Rajesh R. Nair Vs Meera Babu, (Kerala HC)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)
112 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This criminal revision under
Section 397/401 Cr.P.C. has been filed by
the revisionist with a prayer to quash the
judgment and order dated 8th April, 2022
passed
by
the
Civil
Judge
(Junior
Division)/F.T.C./W.P./Judicial
Magistrate,
Pilibhit in Complaint Case No. 2256 of
2017 (Smt. Mamta Devi Vs. Raj Kumar
Mishra & Others) and the judgment and
order passed by the Additional Sessions
Judge, Court No.3, Pilibhit dated 27th July,
2023 in Criminal Appeal No. 61 of 2022
(Ram Kumar Mishra Vs. Smt. Mamta &
Another), whereby the appeal filed by the
revisionist against the judgment and order
dated 8th April, 2022 has been dismissed.

2. I have heard Mr. Ashutosh Tiwari,
learned counsel for the revisionist, Mr. M.
Ashif, learned counsel for opposite party
no.2 and Mr. Ratnesh Kumar Singh,
learned A.G.A. for the State.

Case of the Revisionist

3. Opposite Party No. 2 was married
with the revisionist in year 2001 according
to Hindu Rites and Rituals without any
fulfilment of dowry. After sometime of the
marriage due to misguidance of parents of
Opposite Party No. 2, the relationship
between the husband and wife became
strained and incompatible and opposite
party no.2 refused to joins the company of
the revisionist and started matrimonial
litigation. The Opposite Party No. 2 filed a
case under Section 125 Cr.P.C in the Court
of
Judicial
Magistrate,
Pilibhit
for
maintenance which was registered as
Maintenance Suit no.650 of 2009 (Smt.
Mamta Devi Versus. Ram Kumar Mishra).
Thereafter the court below has recorded the
statement of P.W.1 Mamta Devi in which
she has stated that she has received total
maintenance amount in one time as
Rs.1,50,000/- and she did not want to
proceed this case against the revisionist any
further. After that the statement of D.W.1
Ram Kumar has been recorded in which he
has stated that he has paid Rs.1,50,000/- to
his wife and now he had no concern with
her in any manner. The Judicial Magistrate,
Pilibhit after consideration of the aforesaid
fact had rejected the application of the
Opposite Party No. 2 vide impugned
judgment and order dated 28.7.2009.
Thereafter
in
the
aforesaid
case
compromise has been arrived at between
the both the parties on 28.7.2009 in the
presence of some respected person of the
society in which the opposite party no.2 has
stated that she has received all the
maintenance amount from the revisionist
and no dues upon the revisionist was left.

4. Thereafter the opposite party no.2
also filed a case under Section 23 of
Protection of Women From Domestic
Violence Act (for short "D.V.Act) in the
year 2017 which was registered as
Complaint Case No.3356 of 2017 (Smt.
Mamta Devi Versus Ramkumar Mishra and
others).
The
Civil
Judge
(Junior.
Division)/F.T.C./W.P/
Judicial
DistrictPilibhit without considering the facts and
circumstances of the case allowed the
complaint case under Section 23 of D.V.
Act with the direction upon the revisionist
to
pay
Rs.3,000/-
per
month
as
maintenance allowance on every 10 day of
the the calender month vide order dated
8.4.2022. Being aggrieved by the order
dated 8.4.2022 passed by Civil Judge (Jr.
Div.)/F.T.C./W.P/
Judicial
Magistrate,
District-Pilibhit, revisionist filed Criminal
Appeal before the court of Additional
District Judge-III Pilibhit which was
registered as Criminal Appeal No.61 of
2022 (Ram Kumar Mishra Vs. Smt. Mamta
and others). The Additional District Judge-
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
113
III Pilibhit without considering the proper
facts and circumstances of the case rejected
the appeal of the revisionist and confirmed
the order dated 8.4.2022 passed by Civil
Judge
Jr.
Div.)/F.T.C./W.P/
Judicial
Magistrate, District-Pilibhit vide order
dated 27.7.2023. Both the orders passed by
the courts below dated 8.4.2022 and
27.7.2023 are against the evidence on
record. Both the courts below did not apply
the judicial mind and disbelieved the
objection of the revisionist and also
believed the version of Opposite Party No.
2.

5. Submissions of the learned
counsel for the revisionist

(I) The concerned Court below
has not applied his judicial mind and
wholly on the basis of surmises and
conjectures
believed
the
affidavit
of
Opposite Party No. 2 and his witnesses and
have not examined to prove the authenticity
of the affidavit and witnesses.

(II) In the proceedings under
Section 125 Cr.P.C., the concerned court
below has recorded the statement of P.W.1
Mamta Devi in which statement she has
stated
that
she
has
received
total
maintenance amount in one time as
Rs.1,50,000/-and she does not want to
continue with the proceedings under
Section 125 Cr.P.C. any further, and
opposite party no. 2 is residing separately
after taking permanent alimony since
28.07.2009, when on the other hand she has
filed complaint seeking relief under D.V.
Act in the year 2017 under Section 23 of
Women Domestic Violence which was
registered as Complaint Case No.3356 of
2017
(
Smt.
Mamta
Devi
Versus.
Ramkumar Mishra and others) i.e. after
long period of 8 years, for which no
plausible explanation of said delay has
been given in the said complaint despite the
fact that a compromise has been entered
into between both the parties on 28.7.2009
in the presence of some respected person of
the society in which the opposite party no.2
has stated that she has received all the
maintenance amount from the revisionist
and no dues was left upon the revisionist
any further.

(III)
The
concerned
Judicial
Magistrate, Pilibhit after consideration of
the
aforesaid
fact
has
rejected
the
application of the Opposite Party No. 2
vide impugned judgment and order dated
28.7.2009.

(IV)
The
Civil
Judge
(Jr.
Div.)/F.T.C./W.P/
Judicial
Magistrate,
District-Pilibhit without considering the
facts and circumstances of the case has
allowed the complaint case under Section
23 of Domestic Violence of Women with
the direction to the revisionist to pay Rs.
3,000/- per month as Maintenance amount
on every 10th day of the calender month
vide
order
dated
8.4.2022.
Feeling
aggrieved with the order dated 8.4.2022 the
revisionist filed Criminal Appeal before the
court of Additional District Judge-III
Pilibhit which was registered as Crl. Appeal
No.61 of 2022 (Ram Kumar Mishra Vs.
Smt. Mamta and others) and the said appeal
has been dismissed by the concerned
Sessions Judge confirming the order of the
concerned Magistrate dated 8th April,
2022, which is per se illegal.

(V) Both the courts below i.e.
Civil Judge (Jr. Div.)/F.T.C./W.P/ Judicial
Magistrate,
District-Pilibhit
and Addl.
Sessions Judge Court No.3, Pilibhit did not
apply their judicial mind and disbelieved
the objection of the revisionist and also
believed the version of the Opposite Party
No. 2 while passing the impugned orders.
Both the courts below have recorded
perverse finding, which is based on no
114 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence and from the findings recorded by
both the courts below it is not clear as on
what circumstances and on what evidence,
the affidavits of Opposite Party No. 2 and
her witnesses have been taken into
consideration and affidavit of Revisionist
has been discarded.

6. On the preliminary objection raised
on behalf of opposite party no.2 that the
present criminal revision under Section
397/401 Cr.P.C. is not maintainable against
the impugned order awarding interim
maintenance under the D.V. Act in favour
of a wife (opposite party no.2 herein) as the
same is an interlocutory order, learned
counsel for the revisionist has placed
reliance upon the reference answered by a
Full Bench of the Lucknow Bench of this
Court dated 27th October, 2016 passed in
Criminal Revision No. 582 of 2016
(Dinesh Kumar Yadav Vs. State of U.P.
& Others), wherein it has been answered
as follows:

"23. Under Section 397 of Cr P C
"the High Court or any Sessions Judge may
call for and examine the record of any
proceeding before any inferior Criminal
Court...". That the Court of Sessions is as
an inferior Court to the High Court, cannot
be disputed. Thus, the Court of Sessions
before
which
an
appeal
has
been
prescribed under Section 29 of the Act,
2005 is a Criminal Court inferior to the
High Court and, therefore, a revision
against its order passed under Section 29
will lie to the High Court under Section
397 Cr P C. Section 401 Cr P C is
supplementary to Section 397 Cr P C.

23.1 Section 4 (2) Cr P C does
not have any application to the present
case. Since the Act, 2005 does not prescribe
any special form of procedure either for the
proceedings under Sections 12, 18, 19, 20,
21, 22 and 23 or for an appeal under
Section 29, therefore, Section 5 is also not
attracted.

23.2 In view of the above, as the
remedy of an appeal had been provided
under Section 29 of the Act, 2005 before a
Court of Sessions, which means a Court of
Sessions referred under Section 6 read with
Sections 7 and 9 of the Cr P C, without
saying anything more as regards the
procedure to be followed in such appeal,
and there being nothing to the contrary in
the Act of 2005 which may be indicative of
exclusion
of the
application
of the
provisions of Cr P C to such an appeal, the
normal remedies available against a
judgment and order passed by a Court of
Sessions by way of appeals and revisions
prescribed under the Cr P C before the
High Court, are available against an order
passed in appeal under Section 29 of the
Act, 2005.

24. The Single Judge Benches of
this Court in the case of Nishant Krishan
Yadav (supra) and Mrs. Manju Sree
Robinson (supra) have erred in holding
that such a criminal revision is not
maintainable before the High Court. The
judgment in Chiranjeev Kumar Arya
(supra) against which the Special Leave
Petition has been dismissed by the Supreme
Court on 12.08.2016 and the judgment in
Prabhunath Tiwari (supra) lay down the
law correctly.

25. In the result, we answer the
first question in the affirmative holding that
the decisions in Nishant Krishna Yadav
(supra) and Manju Shree Robinson (supra)
do not lay down the law correctly. In other
words, we hold that a revision under
Section 397/401 of Cr P C against a
judgment and order passed by the Court of
Sessions under Section 29 of the Act, 2005
is maintainable and that the decisions in
Nishant Krishna Yadav (supra) and Manju
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
115
Shree Robinson (supra) do not lay down
the law correctly.

Reference
is
answered,
accordingly."

7. To the submission made by the
learned counsel for opposite party no.2
during the course of argument that after
final settlement between the husband and
wife, the husband is entitled to pay
maintenance allowance to wife unless she
gets married with some other persons or
decree of divorce was passed as per the
Apex Court in case of Nagendrappa
Natikar Vs. Neelamma reported in 2013 0
Supreme (SC) 253 as well as judgment
passed by Hon'ble Panjab & Haryana High
Court in Case of Sunil Sachdeva Vs.
Rashmi and Another reported in 2023 1
Crimes. (HC) 7, learned counsel for the
revisionist submits that both the judgments
are related to section 125 Cr. P. C. but
present case is related to Domestic
Violence Act which is a special act and has
been formed to provide effective protection
of the rights of the women guaranteed
under the Constitution of India who are
victims of violence of any kind occurring
within the family. In support of the said
submission, learned counsel for the
revisionist has referred to the definition
of Domestic Violence which has been
given in Section 3 of the D.V. Act.

8.

Learned
counsel
for
the
revisionist further submits that the
aforesaid provision clarifies that for the
purposes of committing offence it is
necessary that aggrieved person should
reside in shared household while it is
admitted fact that opposite party no. 2
is
residing
separately
from
the
revisionist
since
28.07.2009
after
making
final
settlement
on
the
condition to take permanent of alimony
of Rs. 1,50,000/- as such, opposite party
no. 2 has no right to seek relief under
the Act therefore the impugned orders
are unreasoned and illegal and the same
are liable to be set aside on the sole
ground.

9. On the cumulative strength of
the aforesaid, learned counsel for the
revisionist submits that both the Courts
below have committed manifest error of
law and facts and committed procedural
illegality, as without examining the
entire facts and circumstances, have
passed
the
impugned
order
dated
8.4.2022 and order dated 27.7.2023,
which have no legs to stand in the eye
of law. Both the impugned orders dated
8.4.2022 and order dated 27.7.2023 are
highly, unjust, improper as well as
against the correct provisions of law
and such orders are liable to be quashed
by
this
Court
while
exercising
revisional jurisdiction under Section
397/401 Cr.P.C. It is further prayed that
in case no suitable order or direction is
by this Court, the Revisionist will suffer
loss and injury, which cannot be
compensated in any terms of way.

Submissions advanced on behalf
of the State and the opposite party
no. 2

10. At the time of final hearing,
learned counsel for opposite party no.2 and
the learned A.G.A. for the State have fairly
conceded that in view of the Full Bench
Judgment of the Lucknow Bench of this
Court in the case of Dinesh Kumar Yadav
(Supra), against the orders impugned the
present criminal revision is maintainable.,
therefore, no question arise for the
maintainability of the present criminal
revision as this Court also agrees with the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
answer given by the Full Bench referred to
above.

12. However, on merits, in reply to
the submissions made by the learned
counsel for the revisionist, learned counsel
for opposite party no.2 and the learned
A.G.A. for the State submit that there is no
illegality or infirmity in the impugned
orders passed by both the courts below so
as to warrant any interference by this
Revisional Court in exercise of its powers
under Sections 397/401 Cr.P.C. As such the
present criminal revision is liable to be
dismissed.

13. Apart from the above, learned
counsel for opposite party no.2 submits that
neither any divorce petition has been filed
by both the parties nor any decree of
divorce has been passed by Family Court,
meaning thereby that till now opposite
party no.2 is legally wedded wife of the
revisionist. It is further submitted that it is
no doubt true that opposite party no.2 had
obtained earlier Rs. 1,50,000/- from her
husband i.e. the revisionist herein but in the
earlier proceedings initiated under the
provisions of Section 125 Cr.P.C., which is
a different Code. When opposite party no.2
was unable to maintain herself because her
father was expired, she has filed an
application under Section 23 of D.V. Act
before the concerned Magistrate and in
the said proceedings the impugned order
of maintenance has been passed in favour
of opposite party no.2.

14. Learned counsel for opposite
party no.2 further submits that there is no
bar to file maintenance case in different
provisions of law after the compromise.
In support of such submissions, learned
counsel for the opposite party no.2 has
placed reliance upon paragraph nos. 10
and 11 of the judgment of the Apex Court
in the case of Nagendra Natikar Vs.
Neelamma reported in 2013 0 Supreme
(SC) 253. Learned counsel for opposite
party no.2 has further relied upon the
Division
Bench
Judgement
of
the
Chhattishgarh High Court dated 11th
November, 2021 passed in FAM No. 03
of 2017 (Chandrabhushan Vs. Smt.
Savita Bai), wherein in paragraph nos. 55
and 56 it has been held that any
maintenance awarded to a woman under
the provisions of D.V. Act would not be
bar to seek further maintenance under
Section 125 Cr.P.C. or under Section 24
of the Hindu Marriage Act. He has also
referred to the judgment of the Punjab
and Haryana High Court in the case of
Sunil Sachdeva Vs. Rashmi & Another
reported in 2023 1 Crimes (HC) 7,
wherein it has been observed that
compromise cannot forfeit the right of a
wife to claim maintenance from husband.

15. Learned counsel for opposite
party no.2 then submits that the father of
opposite party no.2 has expired and she is
dependent upon her brother and she
cannot maintain herself and since the
revisionist is her husband, he is liable to
pay maintenance allowance to opposite
party no.2 as opposite party no.2 has
legal
right
to
obtain
maintenance
allowance for maintaining herself from
the revisionist and there is no bar to file
an application for maintenance allowance
under the D.V. Act after compromise in
any other proceedings initiated earlier.

16. Learned counsel for opposite
party no.2 again submits that since opposite
party no.2 is living with her brother and old
age mother and she is legally wedded wife
of the revisionist, he is duty bound to
maintain his wife i.e. revisionist herein.
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
117

17. On the cumulative strength of the
aforesaid, learned counsel for opposite
party no.2 submits that since the courts
below have passed just and legal orders
while directing the revisionist to pay the
interim maintenance of Rs. 3,000/- to his
wife i.e. opposite party no.2, the present
criminal revision filed by the revisionist
has no legal ground and is liable to be
dismissed.

18. I have considered the submissions
made by the learned counsel for the parties
and have gone through the records of the
present criminal revision especially the
impugned orders passed by the courts
below.

19. It is important for this Court to
first come to the findings recorded by the
Civil
Judge
(Junior
Division)
F.T.C./D.P./J.M., Pilibhit dated 8th April,
2022 under the provisions of D.V. Act
directing the revisionist to pay Rs. 3,000/-
to opposite party no.2 per month towards
interim maintenance. For ready reference,
the findings are being quoted herein below:

"पत्रावली के अवलोकन से जवजदत ह जक पररवाजदनी
द्वारा अपने प्राथषना पत्र के माध्यम से दौरान वाद वाद प रवी करने एवं
अपने द जनक िचो हेतु अन्तररम िरण -पोर्ण जदलाये जाने की
याचना की गयी ह । पररवाजदनी द्वारा यह िी कथन जकया गया ह जक
वह वर्ष 2008 से अपने मायके में रही रही ह पररवाजदनी के जपता
की मृत्यु हो चुकी ह । ऐसी जस्थजत में पररवाजदनी को वाद व्यय वहन
करने एवं अपनी द जनक आवश्यकताओं की पूजतष हेतु दौरान वाद
अन्तररम िरण -पोर्ण जदलाये जाना जवजधक एवं न्यायोजचत प्रतीत
होता ह । अतैः प्राजथषनी का प्राथषना पत्र आंजशक रूप से स्वीकार जकये
जाने योग्य ह ।"

20. Now this Court comes to the
findings recorded by the appellate court
while dismissing the appeal filed by the
revisionist against the order dated 8th April,
2022 by the judgement and order dated
27th July, 2023. For ready reference, the
findings are extracted herein below:

10. "अपीलाथी की ओर से जवद्वान अजधवक्ता द्वारा
यह तकष िी प्रस्तुत जकया गया ह जक उसकी पत्नी वर्ष 2008 से
मायके में रह ह एवं उसके द्वारा प्राथषनापत्र में उसके सिी पररवार
वालों याजन 6 लोगों पक्षकार बनाया गया ह , और झूठा प्राथषनापत्र
जदया गया ह एवं न ही पत्नी के साथ जकसी प्रकार की घरेलू जहंसा
की गयी ह । अपीलाथी द्वारा प्रस्तुत उक्त तकष उियपक्षों का साक्ष्य
जलये जाने के पश्चात वाद के अंजतम जनस्तारण के समय जवचारणीय
ह , इस स्तर पर मात्र अंतररम िरण-पोर्ण हेतु धारा 23 घ घरेलू
जहंसा से मजहलाओं के संरक्षण अजधजनयम के जनस्तारण में जवद्वान
अवर न्यायालय द्वारा पाररत आलोच्य आदेश, जो जक मात्र दौरान
जवचारण अन्तररम िरण-पोर्ण व वाद व्यय से सम्बजन्धत ह , के
गुणावगुण पर अपीलीय न्यायालय द्वारा जवचार जकया जाना ह । धारा
23 (1) घरेलू जहंसा से मजहलाओं के संरक्षण अजधजनयम के
अन्तगषत जवद्वान मजजस्रेट को अन्तररम और एकपक्षीय आदेश देने
की शजक्त प्रदान की गयी ह तथा इसमें यह प्रावधाजनत ह जक
"मजजस्रेट इस अजधजनयम के अधीन उसके समक्ष जकसी कायषवाही
में, ऐसा अन्तररम आदेश, जो उजचत और न्यायोजचत हो, पाररत कर
सकेगा।" जकन्तु प्रस्तुत प्रकरण में जवपक्षी की उपजस्थजत के पश्चात एवं
सुनवायी का पूणष अवसर जदये जाने के पश्चात उसकी अनुपजस्थजत में
उक्त प्रावधान के अन्तगषत जवद्वान अवर न्यायालय द्वारा प्राजथषनी /
प्रत्यथी के प्राथषनापत्र को एकपक्षीय रूप से स्वीकार करते हुए दौरान
वाद 3000 /- रूपये प्रजतमाह, जवपक्षी / अपीलाथी द्वारा प्राजथषनी
को प्रदान जकये जाने हेतु आलोच्य आदेश द्वारा आदेजशत जकया गया
ह , जो जक पूणषतैः तथ्यात्मक जवजधक एवं क्षेत्राजधकार के अन्तगषत ह
।

11. प्रकरण के तथ्य एवं पररजस्थजतयों व जवद्वान
अवर न्यायालय द्वारा आलोच्य आदेश में जकये गये उपरोक्त संप्रेक्षणों
को दृजष्टगत रिते हुए यह न्यायालय इस जनष्कर्ष पर पहुंचती ह जक
जवद्वान अवर न्यायालय द्वारा पाररत आलोच्य आदेश जदनांजकत
08.04.2022 में कोई अव धाजनकता व अजनयजमतता दजशषत नहीं
होती ह तथा जवद्वान अवर न्यायालय द्वारा पाररत आदेश समुजचत
तथा जवजधपूणष ह । अतैः जवद्वान अवर न्यायालय द्वारा पाररत आलोच्य
आदेश में हस्तक्षेप जकये जाने का कोई आधार नहीं बनता ह ।
तदनुसार अपीलाथी की ओर से प्रस्तुत अपील आधारहीन होने के
कारण जनरस्त जकये जाने योग्य ह ।"

21. It is also required for this Court to
refer to the relevant paragraphs of the
judgments of the Apex Court in the case of
118 INDIAN LAW REPORTS ALLAHABAD SERIES
Nagendra Natikar, (Supra) which has
heavily been relied upon by the learned
counsel for opposite party no.2

22. Paragraph nos. 10 and 11 of the
case of Nagendra Natikar (Supra) read as
follows:

"10. Section 125 Cr.P.C. 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. Section
125 is not intended to provide for a full and
final determination of the status and
personal rights of parties, which is in the
nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C.
and the order made under Section 125
Cr.P.C. is tentative and is subject to final
determination of the rights in a civil court.

11. Section 25 of the Contract Act
provides that any agreement which is
opposed to public policy is not enforceable
in a Court of Law and such an agreement is
void,
since
the
object
is
unlawful.
Proceeding under Section 125 Cr.P.C. is
summary in nature and intended to provide
a speedy remedy to the wife and any order
passed under Section 125 Cr.P.C. by
compromise or otherwise cannot foreclose
the remedy available to a wife under
Section 18 (2) of the Act."

23. In the case of Rajnesh Vs. Neha
& Another reported in (2021) 2 SCC 324,
the Apex Court has opined that there is no
inconsistency between Cr.P.C. and the
Hindu Adoptions and Maintenance Act,
1956 (HAMA) and both can stand together.
Though there are different enhancements
providing for maintenance, each enactment
provides an independent and distinct
remedy framed with a specific object and
purpose. It has been further opined that the
provisions of maintenance in secular laws
like the Special Marriage Act, 1954 (SMA),
Section 125 Cr.P.C. and the Protection of
Women from Domestic Violence Act, 2005
(the DV Act) are irrespective of religious
community to which they belong and apart
from other remedies provided in personal
laws like dissolution of marriage or
restitution of conjugal rights etc. The
relevant portion whereof reads as follows:

"....In Nanak Chand v Chandra
Kishore Aggarwal & Ors., the Supreme
Court held that there was no inconsistency
between the Cr.P.C. and HAMA. Section
4(b) of HAMA would not repeal or affect
the provisions of Section 488 of the old
Cr.P.C. It was held that :

"4. Both can stand together. The
Maintenance Act is an act to amend and
codify the law relating to adoptions and
maintenance among Hindus. The law was
substantially similar before and nobody
ever suggested that Hindu Law, as in force
immediately before the commencement of
this Act, insofar as it dealt with the
maintenance of children, was in any way
inconsistent with Section 488, CrP.C. The
scope of the two laws is different. Section
488 provides a summary remedy and is
applicable to all persons belonging to all
religions and has no relationship with the
personal law of the parties. ..."

24. In the case of Ramchandra
Laxman
Kamble
vs
Shobha
Ramchandra
Kamble And Another
reported in 2018 SCC OnLine Bom 7039,
the Bombay High Court has observed as
follows:

"13. There are several rulings,
which take the view that an agreement, in
which the wife gives up or relinquishes her
right to claim maintenance at any time in
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
119
the future, is opposed to public policy and,
therefore, such an agreement, even if
voluntarily entered, is not enforceable. The
two courts in the present case have
basically relied upon such rulings and held
that even if it is assumed that the parties
had voluntarily agreed to give up their time
to claim maintenance from each other, such
agreement is opposed to public policy and,
therefore, the same is not enforceable, or
the same does not bar the maintainability
of an application under Section125 of
Cr.P.C. There is no jurisdictional error in
the view taken by these two courts so as to
warrant interference under Article 227 of
the Constitution of India.

14. In Shahnaz Bano d/o Aslam
Khan
(Smt.)
vs.
Babbu
Khan
s/o
Nanhekhan Pathan & Another 1, learned
Single Judge of this Court has held,
considering the trend of decisions of
different courts in India and the Supreme
Court, that he was firmly of the view that
even in a case covered by Clause (c) of
Section 127 (3) of Cr.P.C., where the wife
has surrendered her rights voluntarily, in a
given case, if after waiving her rights to
maintenance, she becomes vagrant and
destitute and is unable to maintain herself,
then irrespective of her personal law, she
would be entitled to avail statutory remedy
for maintenance under Section 125 of
Cr.P.C.

15. In Rameshwar s/o Sandu
Kachkure VS. State of Maharashtra &
Another, learned Single Judge of this Court
has taken a view that an agreement, by
which the wife relinquishes her right to
receive maintenance any time in future, is
contrary to public policy and consequently
unenforceable.

16. In Tejaswini d/o Anandrao
Tayade And Anr. vs. Chandrakant Kisanrao
Shirsat And Anr.3, another Single Judge of
this 1 1985 Mh.L.J. 853 2 2018(4)
Mh.L.J.(Cri.) 3 2005(3) Mh.L.J. 137, Court
refused to reject an application under
Section 125 Cr.P.C. on the ground that wife
in the customary divorce deed and consent
deed executed by her relinquished her
claim for past and future maintenance. To
the same effect are the observations of a
learned Single Judge of Allahabad High
Court in Mahesh Chandra Dwivedi Vs.
State of U.P. & Another.

17. In Rajesh R. Nair vs. Meera
Babu 5, Division Bench of Kerala High
Court has held that an agreement, by which
the wife waived her right to claim
maintenance, would be a void agreement as
against public policy. Such an agreement
would amount to ousting of jurisdiction of
Magistrate and Family Court to entertain
maintenance claim, which cannot be
permitted by law. Therefore, the claim for
maintenance cannot be rejected on the
basis of such agreement of waiver of right
to maintenance."

25. On overall evaluation and deeper
scrutiny of the records of the present
criminal revision, submissions made by the
learned counsel for the parties and also the
case laws referred to herein above, this
Court finds substance in the submissions
made by the learned counsel for opposite
party no.2 that no provisions of law like
Hindu Marriage Act or Protection of
Women from Domestic Violence Act
restrict any wife to file an application
seeking maintenance allowance from her
husband on the ground that she has already
obtained permanent alimony on the basis of
a compromise in a proceedings initiated by
her under the provisions of Section 125 of
Code of Criminal Procedure.

26. So far as the submission made by
the learned counsel for the revisionist that
since the opposite party no.2 is residing
120 INDIAN LAW REPORTS ALLAHABAD SERIES
separately from the revisionist since 28th
July, 2009 after final settlement between
the parties, no offence under the provisions
of D.V. Act is made out against the
revisionist, is concerned, this Court may
refer to the provisions of Section 2 (s) of
D.V. Act in which definition of shared
household has been given. For ready
reference, Section 2 (s) reads as follows:

"2. Definitions.--

.....

(s) "shared household" means a
household where the person aggrieved lives
or at any stage has lived in a domestic
relationship either singly or along with the
respondent and includes such a household
whether owned or tenanted either jointly by
the aggrieved person and the respondent,
or owned or tenanted by either of them in
respect of which either the aggrieved
person or the respondent or both jointly or
singly have any right, title, interest or
equity and includes such a household
which may belong to the joint family of
which the respondent is a member,
irrespective of whether the respondent or
the aggrieved person has any right, title or
interest in the shared household."

27. From the perusal of the aforesaid
definition of Shared Household it is
apparently clear that The use of the
expression "at any stage has lived"
immediately after words "person aggrieved
lives" has been used to protect the women
from denying any on the ground that on the
date when application is filed, she was
excluded from possession of the house or
temporarily absent. The shared household
is contemplated to be the household, which
is a dwelling place of aggrieved person in
present time. The shared household
referred to in Sec 2(s) is the shared
household of the aggrieved person where
she was living at the time when the
application was filed or in the recent past
had been excluded from the use or she is
temporarily absent.

28. In the case of Juveria Abdul
Majid Patni vs. Atif Iqbal Mansoori and
Another reported in [(2014) 10 SCC 736],
the
Hon'ble
Supreme
Court
while
interpreting the definition of aggrieved
person under Section 2(a) of the D.V. Act
has held that apart from the woman who is
in a domestic relationship, any woman who
has been in a domestic relationship with the
respondent, if alleged to have been
subjected to any act of domestic violence
by the respondent comes within the
meaning of aggrieved person.

29. Further, after analysing the
relevant provisions of the D.V. Act, the
Hon'ble Supreme Court in the case of
Juveria Abdul Majid Patni (Supra) while
referring to the earlier judgment of the
Apex Court in the case of V.D. Bhanot vs.
Savita Bhanot reported in [(2012) 3 SCC
183], held that the conduct of the parties
even prior to coming into force of the D.V.
Act could be taken into consideration while
passing an order under Sections 18, 19 and
20 thereof. The wife who had shared a
household in the past but was no longer
residing with her husband can file a petition
under section 12 if subjected to domestic
violence. It was further observed that where
an act of domestic violence is once
committed, then a subsequent decree of
divorce will not absolve the liability of the
respondent from the offence committed or
to deny the benefit to which the aggrieved
person is entitled to.

30. The High Court of Madras in the
case of Vandhana Vs. T. Srikanth and
Krishnamachari reported in 2007 SCC
11 All. Ram Kumar Mishra Vs. State of U.P. & Anr.
121
OnLine Mad 553 has held that it is not
necessary for any woman to establish her
physical
act
of
living
in
"Shared
Household" either at time of institution of
proceedings or in the past. It has been
further opined that her her bodily presence
or absence from "shared household" cannot
belittle her relationship on anything other
than "domestic relationship". Relevant
paragraph 20 of the judgement of the
Madras High Court is being extracted
herein-below:

"20. In a society like ours, there
are very many situations, in which a
woman may not enter into her matrimonial
home immediately after marriage. A couple
leaving for honeymoon immediately after
the marriage and whose relationship gets
strained even during honeymoon, resulting
in the wife returning to her parental home
straight away, may not stand the test of the
definition of domestic relationship under
Section 2(f) of the Act, if it is strictly
construed. A woman in such a case, may
not live or at any point of time lived either
singly or together with the husband in the
"shared household", despite a legally valid
marriage
followed
even
by
its
consummation. It is not uncommon in our
society, for a woman in marriage to be sent
to
her
parental
home
even
before
consummation of marriage, on account of
certain traditional beliefs, say for example,
the intervention of the month of Aadi. If
such a woman is held to be not entitled to
the benefit of Section 17 of the Act, on
account of a strict interpretation to Section
2(f) of the Act that she did not either live or
at any point of time lived together in the
shared household, such a woman will be
left remediless despite a valid marriage.
One can think of innumerable instances of
the same aforesaid nature, where the
woman might not live at the time of
institution of the proceedings or might not
have lived together with the husband even
for a single day in the shared household.