# Revisionist v. State Of U.P. & Another

- **Citation:** (2013) 1 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-08
- **Bench:** Het Singh Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revisionist-v-state-of-u-p-another-42491
- **Pages:** 8

## Headnote

Criminal Procedure Code 1973-Criminal
Revision against the order passed under
Section
125
granting
interim
maintenance of Rs. 1500/-Revisionist a
graduate man doing private job-whereas
the wife is simply class XII standardcontention of husband about earning of
wife from tuition and tailoring not
proved
by
evidence-finding
of
fact
recorded by the Magistrate about the
wife to be unable to maintain herself
confirmed-monthly
allowance
of
Rs.
2500/-can not be said excessive-in view
of high inflation-proposal to maintain the
wife
if
she
join
the
company
of
revisionist-held-not
available-Revision
dismissed.

Held: Para-19

In this case as aforementioned, the
family background of the Revisionist is
sound enough studded with the fact that
the revision is educated and he has
completed his graduation. On the other
hand, his wife is a daughter of a teacher.
She
is
also
maintaining
the
minor
legitimate child of the Revisionist, who is
a school going boy. Therefore, the
monthly allowance of Rs. 2,500/- in all
as
maintenance
is
not
excessive
particularly in view of these days of high
inflation. Moreover, this is equally a
finding of fact and based on evidence
and material available on record before
the Magistrate and the same does not
suffer from any illegality as such, is not
liable to be interfered with in the
Revision.
Case Law discussed:
AIR 1926 Mad 346 (A); AIR 1955 Allahabad
320; 1963 Cr.L.J. 1153; 2005 Cr.L.J. 2141; AIR
1929 PC 128; 1971 AIR 234; [2006(63) ALR
543]; 1981 Cri.L.J. 1439; (1982) 2 Supreme
Court Cases 373

## Text

1 All] Manoj Kumar Vs. State of U.P. & Another
189
cantankerous and abrasive workman on
it. We accordingly dismiss the appeal but
direct that instead of reinstatement the
respondent would be entitled to the
payment
of
Rs.10,00,000/-
as
compensation as full and final settlement
with respect to his entire claim."

11. Accordingly, writ petition is
allowed. Impugned award is set aside and
substituted by a direction to the petitioner
to pay Rs.1,50,000/- to respondent No.2
as consolidated damages/ compensation
within two months from today by
depositing the same before the Deputy
Labour Commissioner for immediate
payment to the respondent No.2. In case
of failure 2% per month interest shall be
payable upon the said amount since after
two months till actual deposit/ recovery.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.01.2013

BEFORE
THE HON'BLE HET SINGH YADAV,J.

CRIMINAL REVISION No. - 3335 of 2010

Manoj Kumar

 ...Revisionist
Versus
State Of U.P. & Another ...Opposite Parties

Counsel for the Petitioner:
Sri Madan Singh

Counsel for the Respondents:
Govt. Advocate
Sri J.P.S.Chauhan

Criminal Procedure Code 1973-Criminal
Revision against the order passed under
Section
125
granting
interim
maintenance of Rs. 1500/-Revisionist a
graduate man doing private job-whereas
the wife is simply class XII standardcontention of husband about earning of
wife from tuition and tailoring not
proved
by
evidence-finding
of
fact
recorded by the Magistrate about the
wife to be unable to maintain herself
confirmed-monthly
allowance
of
Rs.
2500/-can not be said excessive-in view
of high inflation-proposal to maintain the
wife
if
she
join
the
company
of
revisionist-held-not
available-Revision
dismissed.

Held: Para-19

In this case as aforementioned, the
family background of the Revisionist is
sound enough studded with the fact that
the revision is educated and he has
completed his graduation. On the other
hand, his wife is a daughter of a teacher.
She
is
also
maintaining
the
minor
legitimate child of the Revisionist, who is
a school going boy. Therefore, the
monthly allowance of Rs. 2,500/- in all
as
maintenance
is
not
excessive
particularly in view of these days of high
inflation. Moreover, this is equally a
finding of fact and based on evidence
and material available on record before
the Magistrate and the same does not
suffer from any illegality as such, is not
liable to be interfered with in the
Revision.
Case Law discussed:
AIR 1926 Mad 346 (A); AIR 1955 Allahabad
320; 1963 Cr.L.J. 1153; 2005 Cr.L.J. 2141; AIR
1929 PC 128; 1971 AIR 234; [2006(63) ALR
543]; 1981 Cri.L.J. 1439; (1982) 2 Supreme
Court Cases 373

(Delivered by Hon'ble Het Singh Yadav,J.)

1. Challenge in this revision is to the
order dated 5.5.2008 rendered by the
Judicial Magistrate, (Court No. 3), Bijnor
on the application of the wife of the
Revisionist arrayed as Respondent No. 2
in the instant revision, purported to be
under Section 125 of the Criminal
Procedure Code, 1973 (In short the Code)
whereby the learned Magistrate has
190 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
ordered payment of monthly allowances
of Rs. 1,500/- for the maintenance of the
wife and Rs. 1,000/- for the maintenance
of the minor son, is impugned in this
Revision.

2. Filtering out unnecessary details,
the facts leading to the filling of this
revision are that the marriage between the
Revisionist and the Respondent No. 2 was
solemnized on 10.6.1989 according to the
Hindu rites and rituals. From the said
wedlock, a male child viz. Prashant
Kumar was born, who was about 10 year
at the time of filing the application.
Unfortunately, their marriage wrecked on
the bedrock of estranged relations. The
allegations substantially in the application
for maintenance by the wife are that her
husband and her in-laws ill-treated her
and
subjected
her
to
cruelty
and
harassment for being unable to meet the
gratuitous dowry demand. It is further
alleged that when the dowry demand
could not be satisfied, the revisionist
turned her out from his home in the year,
2004 and there being no alternative, she
came to live with her parents and has been
residing with her parents along with her
minor child.

3. The matrix of necessary facts as
would crystallize from allegations and
counter allegations substantially are that
the revisionist neglected to maintain the
respondent No. 2 (his wife) and his
legitimate minor child; and therefore, she
was compelled to take recourse to the
provisions of Section 125 of the Code by
moving an application for maintenance
against the Revisionist in the court of
Judicial
Magistrate,
Bijnor.
The
Revisionist filed his objections against the
application for maintenance of his wife in
which he refuted the allegations and
submitted that his wife was not entitled to
any maintenance from him on the ground
that he did not have sufficient means to
maintain them, that his wife was able to
maintain herself and lastly, that without
sufficient reason, she refused to live with
him. It is also alleged that she was leading
an adulterous life. The learned Magistrate,
however, by the impugned order, allowed
the
application
and
ordered
the
Revisionist to pay monthly allowances as
aforementioned, which is under challenge
in this revision.

4. I have heard learned counsel for
the parties at considerable length and have
also been taken through the materials on
record.

5.

Learned
counsel
for
the
Revisionist in his submissions made a bid
to assail the impugned order on factual
grounds.
It
is
contended
that
the
Revisionist is a casual labourer and his
means are not such as to afford
maintenance at the rate granted by the
court below. On the other hand, it is
contended that his wife has means to
maintain herself and her child. To be
precise, he gave details about the income
stating that she was earning to the tune of
Rs. 5000/- per month from tuition and
tailoring work etc. Thus, it is argued, she
cannot be said to be unable to maintain
herself. It is also argued that the
Respondent No. 2 has produced no
evidence not to speak of any satisfactory
evidence to prove the income of the
Revisionist followed by the submission
that the learned Magistrate without any
cogent material on record in proof of the
income of the Revisionist, passed the
impugned order in a perfunctory manner
directing him to pay maintenance as
aforementioned to his wife and his minor
1 All] Manoj Kumar Vs. State of U.P. & Another
191
son. It is also submitted that the learned
Magistrate has taken into account the
income of the Revisionist from the
holdings of his father, which according to
him, is absolutely incorrect. The learned
Magistrate, not only committed gross
error in holding that the Revisionist had
sufficient means and has neglected to
maintain his wife and minor son but also
committed illegality in observing that the
wife was unable to maintain herself.

6. The learned counsel further
contended that the learned Magistrate has
eschewed from consideration that the wife
has refused to live with her husband
without any cogent and convincing
reason. It has also not been considered by
the learned Magistrate that she was living
in adultery. Thus, the learned Magistrate
ignoring the significant provisions of
Section 125 of the Code has proceeded to
pass the impugned order- taking a lopsided view by taking into reckoning the
case of the wife alone. The learned
counsel also assailed the impugned order
over the quantum of maintenance allowed
to the wife.

7. Learned A.G.A refuting the
arguments of the learned counsel for the
Revisionist has submitted that in this case,
it brooks no dispute that the Respondent
no. 2 is the legally wedded wife of the
Revisionist and the minor is his legitimate
son. He also contended that it goes
without saying that both are unable to
maintain themselves. He also contended
that the Revisionist is an able bodied man
and is a graduate. During his crossexamination it is stated by him that he is
doing job with Jilao Firm, Loco Road,
Moradabad. It was also stated that his
father
was
possessed
of
sufficient
agricultural land. Thus, it leaves no
manner
of
doubt
that
his
family
background is sound. Indisputably, the
respondent No. 2 is living separately from
him along with the legitimate child for the
last many years. The revisionist, it is
submitted,
despite
having
sufficient
means has neglected to maintain his wife
and his legitimate minor child, who are
unable to maintain themselves. It is on
record that the Revisionist and his parents
had treated Revisionist's wife with cruelty
in furtherance of their demand for more
dowry. In these circumstances, there may
be apprehension in her mind that she is
likely to be physically harmed. Such
apprehension
also
would
furnish
reasonable justification for her refusal to
live with her husband. Besides the
revisionist has made allegations that his
wife is leading an adulterous life without
any valid proof, which is equally a ground
for separate living of his wife. The
learned
A.G.A.
has
supported
the
impugned order contending that the
learned Magistrate has committed no
illegality apparent on the face of the
record in granting the maintenance
allowances to the wife and the legitimate
minor child.

8. I have given my thoughtful
consideration to the rival submissions
made on behalf of learned counsel for
both the parties. The first and foremost
question that crops up for consideration is
-whether the Revisionist is not having
sufficient means to maintain his wife and
his legitimate minor child. In dealing with
this question I feel called to refer to the
submissions of the learned counsel for the
Revisionist which is that the revisionist
happens to be a casual labourer and thus
he is not having sufficient means to
maintain his wife and his minor child. It
has not been disputed that the Revisionist
192 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
is an able bodied and physically sound
person. He is a graduate. As per his own
admission
elicited
during
crossexamination before the Magistrate that he
was employed with Jilao Firm, Loco
Road, Moradabad. What lends further
credence to the case of the respondent no
2 is that she has produced before the
Magistrate the extracts of Khatunees in
order to establish that Revisionist's father
is possessed of sufficient agricultural
land. Thus, it is sought to be established
that the revisionist is having good family
background. Having considered all these
facts, it leaves no manner of doubt that
the revisionist has sufficient means to
maintain his wife and his minor child.

9. Before I proceed further, it be
appropriate to refer to certain ex-cathedra
decision on the point. The first decision
on the point is Kandasami Chetty, AIR
1926 Mad 346 (A) in which Madra High
Court held that the word "means" used in
the Section did not mean that the husband
should be possessed of any tangible
property, but if a man was healthy and
able bodied he must be taken to have the
means to support his wife.

10. The above view was followed by
this Court in Dhani Ram Vs. Ram Dei,
AIR 1955 Allahabad 320, held that the
word 'means' includes earning capacity.
Hence, when a man is healthy and able
bodied he must be taken to have the
means to support his wife.

11. In Chander Prakash Boadh Raj
v. Sheila Rani Chander Prakash, 1963
Cr.LJ. 1153, Delhi High Court held that
an able bodied young man has to be
presumed to be capable of earning
sufficient money reasonably to maintain
his wife and child and he cannot be heard
to say that he is not in a position to earn
to be able to maintain them according to
the family standard.

12. The apex court in Savitaben
Somabhai Vs. Sate of Gujarat and
Others, 2005 Cr.L.J. 2141 held:

" the provision is enacted for social
justice and specially to protect women
and children as also old and infirm poor
parents and falls within the constitutional
sweep of Article 15 (3) reinforced by
Article 39 of the Constitution of India,
1950
(in
short
Constitution).
The
provision gives effect to the natural and
fundamental duty of a man to maintain his
wife, children and parents so long as they
are unable to maintenance themselves."

If the submissions advance across
the bar by the learned counsel for the
revisionist is viewed analytically in the
light of the above rulings, there is no
force in the submissions of the learned
counsel simply for the reason that the
wife of the Revisionist had not produced
any evidence to prove the income of the
Revisionist before the learned Magistrate
or that the Magistrate erred in observing
that the Revisionist was having sufficient
means to maintain his wife and the minor
child. The Revisionist is not only able
bodied and physically sound person but
also he is a graduate and as per his own
contention he is doing private job. His
family background is also sound and
therefore, the finding of fact recorded by
the Magistrate that the Revisionist is
having sufficient means is not liable to be
disturbed in this Revision.

13. The next point involved in this
revision is whether the wife of the
Revisionist is able to maintain herself. His
1 All] Manoj Kumar Vs. State of U.P. & Another
193
wife (Respondent no. 2) in her application
as well as during her evidence before the
Magistrate has categorically stated that
she has studied upto 8th standard; and
therefore, she is unable to get any job. She
is having no sufficient means of her
livelihood and therefore, she is unable to
maintain herself and the legitimate minor
child of the Revisionist. The Revisionist
in his objection though stated that his wife
is earning Rs. 5000/- per month from
tuition, tailoring work etc. but he failed to
adduce any evidence to prove the income
of his wife as alleged by him. It may be
mentioned here that the apex court in
Savitaben Somabhai (Supra) held that
Section 125 of the Code is enacted for
social justice to protect woman and
children etc. and the provision gives
effect to the natural and fundamental duty
of a man to maintain his wife and children
etc. so long as they are unable to maintain
themselves.

14. Thus, the burden of proof that
the Revisionist is able to maintain herself,
squarely lies on the Revisionist. In this
regard, it is sufficient for the wife to say
that she is unable to maintain herself and
the wife is not supposed to prove this by
any
clinching
evidence.
Since
the
Revisionist has failed to produce evidence
to prove that his wife is able to maintain
herself, and the learned Magistrate has
rightly held that the wife is unable to
maintain herself. In this view of the
matter, I am not inclined to interfere with
the finding of fact in the revisional
jurisdiction of this Court.

15. The next point raised by the
learned counsel for the Revisionist is that
the quantum of the maintenance is highly
excessive and is not in accordance with
the financial and social status of the
parties particularly in view of that the
Revisionist is having no sufficient means.
What should be amount of maintenance is
a finding of fact based on evidence and
the material produced on record by both
the sides. The quantum depends upon the
position or status of the parties including
the financial position of the husband.

16. In connection with the above
submission, I feel called to advert to the
decision
in
EKradeshwari
vs.
Homeshwar AIR 1929 PC 128 in which
the
Privy
Council
observed
that
maintenance depends upon a gathering
together of all the facts and the situation,
amount of free estate, the past life of the
married parties and the family and survey
of the members, on reasonable view of
change
of
circumstances,
possibly
required in future, regard having of
course be given to the scale and mode of
living and the age, habits and wants and
class of life of the parties.

17. The apex court upheld the above
observation of the Privy Council in
Kulbhushan Vs. Raj Kumari, 1971 AIR
234 that the amount of maintenance
should be so-much that it should aid the
wife to live in a similar style as she
enjoyed in the matrimonial home.

18. This Court in Smt. Veena Panda
Vs. Devendra Kumar Panda [2006 (63)
ALR 543] case under Section 24 of Hindu
Marriage Act, 1955 held:

"The gamut of all the aforesaid case
laws is that as long as matrimonial ties
subsists between the parties, the wife is
entitled to live in the matrimonial house
or in separate building. The wife should
not be relegated to a lower standard of
living than that the husband enjoys. She
194 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
should be given maintenance according to
status of her husband. While considering
the question of 'maintenance pendente
lite' under Section 24 of the Hindu
Marriage Act its definition as given in
Hindu Adoption and Maintenance Act
should be adopted and some significant
points should necessarily be taken into
account such as (i) position and status of
the parties, (ii) reasonable wants of the
claimant, towards food, clothing, shelter
and medical attendance etc., (iii) income
of the respondent, (iv) income, if any, of
the claimant, (v) number of persons the
respondent is obliged to maintain. As
regards quantum of maintenance it may
be from 1/3rd to 50% of the income of the
respondent but no rigid formula can be
fixed."

19. In this case as aforementioned,
the family background of the Revisionist
is sound enough studded with the fact that
the revision is educated and he has
completed his graduation. On the other
hand, his wife is a daughter of a teacher.
She is also maintaining the minor
legitimate child of the Revisionist, who is
a school going boy. Therefore, the
monthly allowance of Rs. 2,500/- in all as
maintenance is not excessive particularly
in view of these days of high inflation.
Moreover, this is equally a finding of fact
and based on evidence and material
available on record before the Magistrate
and the same does not suffer from any
illegality as such, is not liable to be
interfered with in the Revision.

20. The next point raised by the
learned counsel for the Revisionist is that
the Revisionist offered to maintain his
wife on condition of her living with him
but she refused to live with him without
any just ground. The learned Magistrate
was, therefore, bound to consider the
ground of refusal sated by the wife and he
should have made an order in this regard.
The learned Magistrate, however, failed
to consider this important aspect of the
case while deciding the maintenance
application, and by this reckoning, it is
argued, the impugned order suffers from
the blemish of patent error and illegality
and deserves to be set aside.

21. These contentions of the learned
counsel for the Revisionist do not
commend to me for acceptance for the
reason that there is nothing on record to
establish that the Revisionist ever offered
to maintain his wife on the condition of
her living with him. On the contrary, it
would transpire, he has filed Divorce
Petition on 16.1.2004 in the court of
competent jurisdiction much prior to the
maintenance application of his wife. The
Respondent No. 2 in her application and
in her statement on oath before the
Magistrate has categorically stated that
she was subjected to cruelty by her
husband and his parents in connection
with dowry demand. Therefore, the wife
had a reasonable apprehension arising
from the conduct of the husband that she
was likely to be physically harmed and
such
apprehension
would
furnish
reasonable justification for her to refuse to
live with her husband.

22.

In
Sirajmohmedkhan
Janmohamadhkhan
Vs.
Hafizunnisa
Yasinkhan reported in 1981 Cri L.J.
1439 the apex court held thus:-

"A clear perusal of this provision
manifestly shows that it was meant to
give a clear instance of circumstances
which may be treated as a just ground for
refusal of the wife to live with her
1 All] Manoj Kumar Vs. State of U.P. & Another
195
husband. As already indicated by virtue of
this provision, the proviso takes within its
sweep all other circumstances similar to
the contingencies contemplated in the
Amending
Provision
as
also
other
instances of physical, mental or legal
cruelty not excluding the impotence of the
husband. These circumstances, therefore,
clearly show that the grounds on which
the wife refuses to live with her husband
should
be
just
and
reasonable
as
contemplated by the proviso. Similarly,
where
the
wife
has
a
reasonable
apprehension arising from the conduct of
the husband that she is likely to be
physically harmed due to persistent
demands of dowry from the husband's
parents or relations, such apprehension
also would be manifestly a reasonable
justification for the wife's refusal to live
with her husband. Instances of this nature
may be multiplied but we have mentioned
some of the circumstances to show the
real scope and ambit of the proviso and
the Amending provision which is, as
already
indicated,
by
no
means
exhaustive."

23. The Revisionist has already filed
a divorce petition against his wife even
prior
to
moving
the
maintenance
application and therefore, this is also a
sufficient ground for the wife to refuse to
live with her husband.

24. In Mst. Khatoon Vs. Mohd.
Yamin reported in (1982) 2 Supreme
Court Cases 373 the apex court held thus:

"It appears from the judgement of the
Magistrate that the appellant had gone to
the village to attend a marriage and there
is nothing to show that she had actually
lived with the husband and then returned.
Even apart from that the very fact that the
letter was couched in most discourteous
terms and amounted to a clear threat to
divorce the wife and sought to obtain her
consent to live with him under duress, this
was in our opinion a sufficient reason for
the wife for refusing to live with her
husband. On this ground, alone the order
of
the
Sessions
Judge
was
fully
supportable in law and the High Court
erred in interfering in revision."

25. Thus, in view of above
discussion particularly taking in view the
ratio flowing from the decisions of the
apex court as aforesaid, the wife certainly
has had just ground to refuse to live with
her husband (Revisionist). Thus, there is
no error or illegality permeating the
impugned order.

26. The last point raised by the
learned counsel for the Revisionist is that
the learned Magistrate has failed to
consider the plea taken by the Revisionist
in his objections that his wife is living in
adultery and therefore, as per subsections
(4) and (5) of Section 125 of the Code she
is not entitled to get maintenance, which it
is argued, have been ignored by the
learned Magistrate while allowing the
application of the Respondent No. 2.

Sub-section (4) and Sub-section (5)
of Section 125 are reproduced below:

Subsection (4) : No wife shall be
entitled to receive an allowance for the
maintenance or the interim maintenance
and expenses of proceeding, as the case
may be, from her husband under this
section if she is living in adultery, or if,
without any sufficient reason, she refuses
to live with her husband, or if they are
living separately by mutual consent.
196 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Subsection (5) : On proof that any
wife in whose favour an order has been
made under this Section is living in
adultery, or that without sufficient reason
she refuses to live with her husband, or
that they are living separately by mutual
consent, the Magistrate shall cancel the
order.

27. A bare perusal of the aforesaid
provisions undoubtedly shows that the
wife shall not be entitled to receive any
maintenance from her husband, if she is
living
in
adultery.
However,
the
maintenance can be denied on proof that
the wife is living in adultery. In this case
the Revisionist has made bald allegations
against his wife but he has produced no
proof in this regard. Learned Magistrate,
therefore, rightly not considered the
allegations of adultery made by the
Revisionist.

28. In view of the discussion made
above, the Revision has no merits and
accordingly dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2013

BEFORE
THE HON'BLE AJAI LAMBA,J.

U/S 482/378/407 No. - 3481 of 2011

Smt. Bhan Mati Devi

...Petitioner
Versus
The State Of U.P And Ors. ...Respondents

Counsel for the Petitioner:
Sri Prem Singh
Sri Angrej Nath Shukla
Sri Pawan Shukla
Sri Prashant Singh Atal

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 482summoning
order-without
disclosing
material-without
giving
reasonsseriously
affects
the
rights
of
an
accused-Revisional Court rightly set-aside the order no interference called farapplication rejected.

Held: Para-11

Considering
the
above,
it
becomes
apparent that the order passed by the
Magistrate summoning the respondent
accused, is neither a reasoned order nor
a speaking order. The order does not,
even
briefly,
indicate
the
material
brought by the complainant on record, in
context of the ingredients of the offence
allegedly
committed.
Sufficiency
of
reason to summon the petitioner as
accused has not been shown. In this
view of the matter, this Court does not
find
that
the
revisional
court
has
committed any jurisdictional error in
setting aside the order of summoning.
This court does not trace any illegality in
the order passed by the revisional court.
Case Law discussed:
(2004) 1 SCC 547; 1974 ICR 120 (NIRC);
(1971) 2 QB 175

(Delivered by Hon'ble Ajai Lamba,J.)

1. It appears that Smt. Bhan Mati
Devi, the petitioner instituted a complaint
against respondent nos.2 to 9 briefly
stating that her land has been subjected to
sale by way of a forged sale deed and
through cheating and conspiracy. Vide
order Annexure No.3 dated 27.7.2010, the
respondents were summoned to stand trial
for commission of offence under Section
419, 420, 467, 468 I.P.C.

2. The respondent accused preferred
a revision petition against order of
summoning which has been allowed vide