# Shri Praveen Srivastava Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Criminal Revision No. 2547 of 2016
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-praveen-srivastava-revisionist-v-state-of-u-p-anr-46844
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Sections 401/397 & 125-
determination
of
quantum
of
maintenance-Learned court below rightly
passed the order for maintenance as the
revisionist is employed and getting salary
having one school going daughter, also
the cost of living has been increased-the
object
of
section
125
Cr.P.C.
was
conceived
to
ameliorate
the
agony,
anguish, financial suffering of a woman
who left her matrimonial home along with
her
children-husband
can
not
take
subterfuges to deprive her of the benefit
of living with dignity.(Para 1 to 10)

Monetary relief granted to the aggrieved woman
and the children must be adequate, fair,
reasonable, and consistent with the standard of
living to which the aggrieved woman was
accustomed to in her matrimonial home. (Para
5,6)

The revision is dismissed. ( E-5)

List of Cases cited:-

## Text

2 All. Shri Praveen Srivastava Vs. State of U.P. & Anr.
521
downloaded from the official website of
High Court Allahabad before the concerned
Court/Authority/Official.'

15. The computer generated copy of
such judgment shall be self-attested by the
counsel(s) of the party(ies) concerned.

16. The concerned Court /Authority
/Official shall verify the authenticity of
such computerized copy of the judgment
from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.
----------
(2021)02ILR A521
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Revision No. 2547 of 2016

Shri Praveen Srivastava ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Brijesh Kumar Srivastava, Sri Ajay
Kumar
Chaurasiya,
Sri
Ravi
Prakash
Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Abhishek Srivastava, Sri Praveen
Kumar Srivastava

A. Criminal Law - Code of Criminal
Procedure,1973-Sections 401/397 & 125-
determination
of
quantum
of
maintenance-Learned court below rightly
passed the order for maintenance as the
revisionist is employed and getting salary
having one school going daughter, also
the cost of living has been increased-the
object
of
section
125
Cr.P.C.
was
conceived
to
ameliorate
the
agony,
anguish, financial suffering of a woman
who left her matrimonial home along with
her
children-husband
can
not
take
subterfuges to deprive her of the benefit
of living with dignity.(Para 1 to 10)

Monetary relief granted to the aggrieved woman
and the children must be adequate, fair,
reasonable, and consistent with the standard of
living to which the aggrieved woman was
accustomed to in her matrimonial home. (Para
5,6)

The revision is dismissed. ( E-5)

List of Cases cited:-

1. Bhuwan Mohan Singh Vs Meena & ors. (2015)
6 SCC 353

2. Rajnesh Vs Neha & anr. :Crl. Appl. No. 730 of
2020 (arising out of SLP (Crl.) 9503 of 2018
)Nov. 4, 2020: 2020 SCC Online SC 903

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Ajay Kumar Chaurasia,
learned counsel for the revisionist, Sri
Praveen Kumar Srivastava, learned counsel
for the opposite party no.2 and Sri Ashwini
Prakash Tripathi, learned AGA for the
State and perused the record. As per the
office report dated 21.08.2017, the lower
court records which were summoned are
tagged with the present revision, which
have also been perused.

2. The present revision has been
preferred against the judgment and order
dated 20.05.2016 passed by the Family
Court, Gorakhpur in Case No. 62 of 2005
(Smt. Sarika Vs. Shri Praveen Srivastava)
by which the wife of the revisionist has
been directed to be paid Rs. 10,000/- and
Kumari Bhumika Srivastava, the daughter
of the revisionist and the opposite party
no.2 has been directed to be paid Rs.
522 INDIAN LAW REPORTS ALLAHABAD SERIES
5,000/- from the date of the order which
will be effective from May, 2016 as
maintenance.

3. Learned counsel for the revisionist
argued that the order impugned is bad in
law as the opposite party no.2 was living in
adultery and the child born from her is not
from his contact and the paternity of the
said child is seriously disputed. It is further
argued that the marriage of the revisionist
with the opposite party no.2 took place on
16.05.2003
and
the
gavna
(second
marriage) took place on 17.05.2003 and the
girl child was born on 28.01.2004 in a
normal delivery which is after 8 months
and 11 days of marriage and as such is
evident that the said child is not born out of
the wedlock of the revisionist and the
opposite party no.2. Learned counsel has
then argued vehemently that the quantum
of maintenance as awarded being Rs.
10,000/- per month to the wife and Rs.
5,000/- per month to the daughter is quite
excessive
looking
to
the
facts
and
circumstances of the case, specially the fact
that the revisionist is drawing a salary of
Rs. 15,000/- per month only. Learned
counsel confines his argument primarily to
the quantum of maintenance as awarded to
the wife and the daughter and then argues
that looking to the fact that the wife was
living in adultery and the girl child was not
born out of his wedlock, the same be
reduced.

4. Per contra, learned counsel for the
opposite party no.2 has opposed the
arguments of the learned counsel for the
revisionist and argued that the order
impugned
is
an
order
passed
after
considering the entire evidence on record.
It is argued that the question of the wife
living in adultery and paternity of the girl
child being disputed by the revisionist has
been dealt with elaborately by the court
concerned in the impugned judgment and
after meticulously dealing with the same, a
specific finding has been returned by the
court concerned that the girl child has been
born out of the wedlock of the revisionist
and the opposite party no.2. Learned
counsel has further argued that in so far as
the quantum of the maintenance as awarded
is
concerned,
the
statement
of
the
revisionist that he was getting a salary of
Rs. 15,000/- per month, is negated from the
salary slip filed before the Court below
which was of the year 2016, in which, he
was shown to be getting a salary of Rs.
42,814/- out of which Rs. 2,628/- were the
necessary deductions and then he was
getting a salary of Rs. 40,186/-. It is argued
that the court below as on the question of
salary also given a specific finding that the
evidence on record being the documents
and the statements as recorded before it
clearly show that the revisionist has tried to
conceal the same and has spoken a lie.

5. The Apex Court in the case of
Bhuwan Mohan Singh Vs. Meena and
others : (2015) 6 SCC 353 has held that
wife is also entitled in law to lead a life in
the similar manner as she would have lived
in the house of her husband. It is further
held that the husband cannot deprive her of
the benefit of living with dignity. Para 2 of
the judgment is as follows:

"2. Be it ingeminated that Section
125 of the Code of Criminal Procedure (for
short "the Code") was conceived to
ameliorate the agony, anguish, financial
suffering of a woman who left her
matrimonial home for the reasons provided
in the provision so that some suitable
arrangements can be made by the Court
and she can sustain herself and also her
children if they are with her. The concept of
2 All. Shri Praveen Srivastava Vs. State of U.P. & Anr.
523
sustenance does not necessarily mean to
lead the life of an animal, feel like an
unperson to be thrown away from grace
and roam for her basic maintenance
somewhere else. She is entitled in law to
lead a life in the similar manner as she
would have lived in the house of her
husband. That is where the status and
strata come into play, and that is where the
obligations of the husband, in case of a
wife, become a prominent one. In a
proceeding of this nature, the husband
cannot take subterfuges to deprive her of
the benefit of living with dignity. Regard
being had to the solemn pledge at the time
of marriage and also in consonance with
the statutory law that governs the field, it is
the obligation of the husband to see that the
wife does not become a destitute, a beggar.
A situation is not to be maladroitly created
whereunder she is compelled to resign to
her fate and think of life "dust unto dust". It
is totally impermissible. In fact, it is the
sacrosanct duty to render the financial
support even if the husband is required to
earn money with physical labour, if he is
able bodied. There is no escape route
unless there is an order from the Court that
the wife is not entitled to get maintenance
from
the
husband
on
any
legally
permissible grounds."

6. Further, in the case of Rajnesh
Vs. Neha and another : Criminal
Appeal No. 730 of 2020 (Arising out of
SLP (Crl.) 9503 of 2018) decided on
November 4, 2020 : 2020 SCC Online
SC 903 the Apex Court has discussed
about the determinants of maintenance
allowance payable to wife and children.
In the said judgment it has been observed
as follows:-

"III Criteria for determining
quantum of maintenance:

(i) The objective of granting
interim / permanent alimony is to ensure
that the dependant spouse is not reduced to
destitution or vagrancy on account of the
failure of the marriage, and not as a
punishment to the other spouse. There is no
straitjacket formula for fixing the quantum
of maintenance to be awarded.

The factors which would weigh
with the Court inter alia are the status of
the parties; reasonable needs of the wife
and dependant children; whether the
applicant is educated and professionally
qualified; whether the applicant has any
independent source of income; whether the
income is sufficient to enable her to
maintain the same standard of living as she
was accustomed to in her matrimonial
home; whether the applicant was employed
prior to her marriage; whether she was
working during the subsistence of the
marriage; whether the wife was required to
sacrifice her employment opportunities for
nurturing the family, child rearing, and
looking after adult members of the family;
reasonable costs of litigation for a nonworking wife. [Refer to Jasbir Kaur Sehgal
v District Judge, Dehradun & Ors. (1997)
7 SCC 7, refer to Vinny Paramvir Parmar v
Paramvir Parmar (2011) 13 SCC 112.]

In Manish Jain v Akanksha Jain :
(2017) 15 SCC 801 this Court held that the
financial position of the parents of the
applicant-wife, would not be material while
determining the quantum of maintenance.
An order of interim maintenance is
conditional on the circumstance that the
wife or husband who makes a claim has no
independent income, sufficient for her or
his support. It is no answer to a claim of
maintenance that the wife is educated and
could support herself. The court must take
into consideration the status of the parties
and the capacity of the spouse to pay for
her or his support. Maintenance is
524 INDIAN LAW REPORTS ALLAHABAD SERIES
dependent upon factual situations; the
Court
should
mould
the
claim
for
maintenance based on various factors
brought before it.

On the other hand, the financial
capacity of the husband, his actual income,
reasonable
expenses
for
his
own
maintenance,
and
dependant
family
members whom he is obliged to maintain
under the law, liabilities if any, would be
required to be taken into consideration, to
arrive at the appropriate quantum of
maintenance to be paid. The Court must
have due regard to the standard of living of
the husband, as well as the spiralling
inflation rates and high costs of living. The
plea of the husband that he does not
possess any source of income ipso facto
does not absolve him of his moral duty to
maintain his wife if he is able bodied and
has educational qualifications. [Reema
Salkan v Sumer Singh Salkan (2019) 12
SCC 303]

(ii) A careful and just balance
must be drawn between all relevant factors.
The test for determination of maintenance
in matrimonial disputes depends on the
financial status of the respondent, and the
standard of living that the applicant was
accustomed to in her matrimonial home.
[Chaturbhuj v Sita Bai (2008) 2 SCC 316]

The
maintenance
amount
awarded must be reasonable and realistic,
and avoid either of the two extremes i.e.
maintenance awarded to the wife should
neither be so extravagant which becomes
oppressive
and
unbearable
for
the
respondent, nor should it be so meagre that
it drives the wife to penury. The sufficiency
of the quantum has to be adjudged so that
the wife is able to maintain herself with
reasonable comfort.

(iii)
Section
23
of
HAMA
provides statutory guidance with respect to
the criteria for determining the quantum of
maintenance. Sub-section (2) of Section 23
of HAMA provides the following factors
which may be taken into consideration : (i)
position and status of the parties, (ii)
reasonable wants of the claimant, (iii) if the
petitioner/claimant is living separately, the
justification for the same, (iv) value of the
claimant's
property
and any
income
derived from such property, (v) income
from claimant's own earning or from any
other source.

(iv) Section 20(2) of the D.V.
Act provides that the monetary relief
granted to the aggrieved woman and / or
the children must be adequate, fair,
reasonable, and consistent with the
standard of living to which the aggrieved
woman was accustomed to in her
matrimonial home.

(v) The Delhi High Court in
Bharat Hedge v Smt. Saroj Hegde :
(2007) 140 DLT 16 laid down the
following factors to be considered for
determining maintenance:

"1. Status of the parties.

2. Reasonable wants of the
claimant.

3. The independent income and
property of the claimant.

4. The number of persons, the
non-applicant has to maintain.

5. The amount should aid the
applicant to live in a similar lifestyle as
he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if
any.

7. Provisions for food, clothing,
shelter, education, medical attendance
and treatment etc. of the applicant.

8. Payment capacity of the nonapplicant.

9. Some guess work is not ruled
out while estimating the income of the
non-applicant when all the sources or
correct sources are not disclosed.
2 All. Shri Praveen Srivastava Vs. State of U.P. & Anr.
525

10. The non-applicant to defray
the cost of litigation.

11. The amount awarded u/s 125
Cr.PC is adjustable against the amount
awarded u/ 24 of the Act. 17."

(vi) Apart from the aforesaid
factors enumerated hereinabove, certain
additional factors would also be relevant
for
determining
the
quantum
of
maintenance payable.

(a) Age and employment of
parties:

In a marriage of long duration,
where
parties
have
endured
the
relationship for several years, it would be a
relevant
factor
to
be
taken
into
consideration. On termination of the
relationship, if the wife is educated and
professionally qualified, but had to give up
her employment opportunities to look after
the needs of the family being the primary
caregiver to the minor children, and the
elder members of the family, this factor
would be required to be given due
importance. This is of particular relevance
in contemporary society, given the highly
competitive
industry
standards,
the
separated wife would be required to
undergo
fresh
training
to
acquire
marketable skills and re-train herself to
secure a job in the paid workforce to
rehabilitate herself. With advancement of
age, it would be difficult for a dependant
wife to get an easy entry into the workforce after a break of several years.

(b) Right to residence:

Section 17 of the D.V. Act grants
an aggrieved woman the right to live in the
"shared household". Section 2(s) defines
"shared
household"
to
include
the
household where the aggrieved woman
lived at any stage of the domestic
relationship; or the household owned and
rented jointly or singly by both, or singly by
either of the spouses; or a joint family
house, of which the respondent is a
member.

The right of a woman to reside in
a "shared household" defined under
Section 2(s) entitles the aggrieved woman
for right of residence in the shared
household, irrespective of her having any
legal interest in the same. This Court in
Satish Chander Ahuja v Sneha Ahuja :
Civil Appeal No. 2483 / 2020 decided vide
Judgment dated 15.10.2020 (supra) held
that "shared household" referred to in
Section 2(s) is the shared household of the
aggrieved person where she was living at
the time when the application was filed, or
at
any
stage
lived
in
a
domestic
relationship. The living of the aggrieved
woman in the shared household must have
a degree of permanence. A mere fleeting or
casual living at different places would not
constitute a "shared household". It is
important to consider the intention of the
parties, nature of living, and nature of the
household, to determine whether the
premises is a "shared household". Section
2(s) read with Sections 17 and 19 of the
D.V. Act entitles a woman to the right of
residence
in
a
shared
household,
irrespective of her having any legal interest
in the same. There is no requirement of law
that the husband should be a member of the
joint family, or that the household must
belong to the joint family, in which he or
the aggrieved woman has any right, title or
interest. The shared household may not
necessarily be owned or tenanted by the
husband singly or jointly.

Section 19 (1)(f) of the D.V. Act
provides that the Magistrate may pass a
residence order inter alia directing the
respondent to secure the same level of
alternate accommodation for the aggrieved
woman as enjoyed by her in the shared
household. While passing such an order,
the Magistrate may direct the respondent to
526 INDIAN LAW REPORTS ALLAHABAD SERIES
pay the rent and other payments, having
regard to the financial needs and resources
of the parties.

(c) Where wife is earning some
income:

The Courts have held that if the
wife is earning, it cannot operate as a bar
from being awarded maintenance by the
husband.
The
Courts
have
provided
guidance on this issue in the following
judgments.

In Shailja & Anr. v Khobbanna :
(2018) 12 SCC 199 [See also decision of
the Karnataka High Court in P. Suresh v S.
Deepa & Ors., 2016 Cri LJ 4794] this
Court held that merely because the wife is
capable of earning, it would not be a
sufficient
ground
to
reduce
the
maintenance awarded by the Family Court.
The Court has to determine whether the
income of the wife is sufficient to enable
her to maintain herself, in accordance with
the lifestyle of her husband in the
matrimonial home. [Chaturbhuj Vs. Sita
Bai : (2008) 2 SCC 316] Sustenance does
not mean, and cannot be allowed to mean
mere survival. [Vipul Lakhanpal v Smt.
Pooja Sharma, 2015 SCC OnLine HP
1252]

In Sunita Kachwaha & Ors. v
Anil Kachwaha : (2014) 16 SCC 715 the
wife had a postgraduate degree, and was
employed as a teacher in Jabalpur. The
husband raised a contention that since the
wife had sufficient income, she would not
require financial assistance from the
husband. The Supreme Court repelled this
contention, and held that merely because
the wife was earning some income, it could
not be a ground to reject her claim for
maintenance.

The Bombay High Court in
Sanjay Damodar Kale v Kalyani Sanjay
Kale : 2020 SCC OnLine Bom 694 while
relying upon the judgment in Sunita
Kachwaha (supra), held that neither the
mere potential to earn, nor the actual
earning of the wife, howsoever meagre, is
sufficient to deny the claim of maintenance.

An able-bodied husband must be
presumed to be capable of earning
sufficient money to maintain his wife and
children, and cannot contend that he is not
in a position to earn sufficiently to maintain
his family, as held by the Delhi High Court
in Chander Prakash Bodhraj v Shila Rani
Chander Prakash : AIR 1968 Delhi 174.
The onus is on the husband to establish
with necessary material that there are
sufficient grounds to show that he is unable
to maintain the family, and discharge his
legal obligations for reasons beyond his
control. If the husband does not disclose
the exact amount of his income, an adverse
inference may be drawn by the Court.

This Court in Shamima Farooqui v
Shahid Khan : (2015) 5 SCC 705 cited the
judgment in Chander Prakash (supra) with
approval, and held that the obligation of the
husband to provide maintenance stands on a
higher pedestal than the wife.

(d)
Maintenance
of
minor
children:

The living expenses of the child
would include expenses for food, clothing,
residence, medical expenses, education of
children. Extra coaching classes or any other
vocational training courses to complement
the basic education must be factored in, while
awarding child support. Albeit, it should be a
reasonable amount to be awarded for extracurricular / coaching classes, and not an
overly extravagant amount which may be
claimed. Education expenses of the children
must be normally borne by the father. If the
wife is working and earning sufficiently, the
expenses may be shared proportionately
between the parties.

(e) Serious disability or ill
health:
2 All. Smt. Indra Gandhi & Anr. Vs. State of U.P.
527

Serious disability or ill health of
a spouse, child / children from the
marriage / dependant relative who require
constant care and recurrent expenditure,
would also be a relevant consideration
while quantifying maintenance."

7. The fact that the revisionist is
employed and working in the Indian
Railways and is a government servant and
is getting a salary after the necessary
deductions which is Rs. 40,186/- in the year
2016 is a fact for which a specific finding
has been returned by the court below based
on evidence on record and documents.

8. As of now, the fact of rise in
inflation, rise of cost of living and also
taking into account that the girl child was
born in the year 2004 and as of now is
about 16 years of age and is of the age of a
school going child and also taking into
consideration the salary of the revisionist
which keeps on increasing every year by
means of dearness allowance, increment
etc. cannot be ignored.

9. Having taken into consideration,
the relevant factors for determining the
quantum of maintenance in the light of the
legal principles laid by the Apex Court and
the facts of the present case, this Court is of
the view that the amount of maintenance as
awarded is appropriate and there is no
irregularity and illegality in the order
impugned.

10. The present revision is thus
dismissed.

11. Since the present revision has
been dismissed, hence the interim order
dated 29.08.2016 passed in the matter by
this Court stands discharged.

12. The lower court records be sent
back to the concerned court forthwith.

13. The party(ies) shall file computer
generated
copy
of
such
judgment
downloaded from the official website of
High Court Allahabad before the concerned
Court/Authority/Official.

14. The computer generated copy of
such judgment shall be self-attested by the
counsel(s) of the party(ies) concerned.

15.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the judgment from the official website of
High Court Allahabad and shall make a
declaration of such verification in writing.
----------
(2021)02ILR A527
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Application U/S 482 Cr.P.C. No. 1210 of 2021

Smt. Indra Gandhi & Anr. ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Prashant Sharma

Counsel for the Opposite Party:
A.G.A.

Criminal Law-Impugned notice passed u/s
344 Cr.P.C.-for giving false evidencedetail order since already passed-notice
impugned need not to be elaborate-as
detail order already passed-Appeal also