# Smt. Aparna Kushwaha & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 886
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-10
- **Case number:** Criminal Revision No. 402 of 2023
- **Bench:** Surendra Singh - I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-aparna-kushwaha-anr-revisionists-v-state-of-u-p-anr-51865
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 125 & 127 -
Criminal Revision - Revisionists challenged order
dated 22.03.2022 granting interim maintenance
of Rs.5,000/- p.m. to wife and Rs.3,000/- p.m.
to daughter, seeking enhancement. Court held:
4 All. Smt. Aparna Kushwaha & Anr. Vs. State of U.P. & Anr.
887
(1) Revision maintainable as challenge was to
quantum of maintenance, not alteration under
Section 127 due to changed circumstances. (2)
Opposite party No. 2, a director and major
shareholder of Koester Pharmaceuticals Pvt. Ltd.,
had an estimated annual income of Rs.7,50,000/-
based on company's net worth, despite claims of
reduced income without evidence. (3) Wife's
educational qualifications (B.Ed, B.Com, T.E.T.)
not sufficient to presume earning capacity to
deny maintenance (Shailja Vs Khobbanna, (2018)
12 SCC 199). (4) Maintenance enhanced to
Rs.18,500/- p.m. for wife and Rs.10,000/- p.m.
for daughter, totaling Rs.28,500/- p.m., payable
from date of application, with arrears in four
instalments (Kalyan Dey Chowdhury Vs Rita Dey
Chowdhury, (2017) 14 SCC 200). Impugned
order modified. (Paras 9-21)

Criminal Revision Allowed.

List of Cases cited:

## Text

886 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint
regarding
harassment
of
Chandkanti by her in-laws and O.P. No.2 to
4, the P.Ws. 1 and 2 have not assigned any
specific role to the opposite party no. 2 to
4.

17. The incident had taken place after
more than seven years of marriage of the
deceased, the Investigating officer have
collected
the
evidence
of
aforesaid
witnesses under Section 161 Cr.P.C. to the
effect that on the date of occasion, the
Opposite party no.2 to 4 had not visited the
place
of
occurrence
only deceased's
husband mother-in-law were present on the
place
of
occurrence.
The
aforesaid
witnesses have given the statement under
Section 161 Cr.P.C. to the effect that
deceased was under depression for not
having a son, she had quarrel with her
mother-in-law. Her mother-in-law scolded
her, thereafter, she sprayed kerosene oil on
herself and lit it with fire.

18. The opposite party No. 2 Gopal
and opposite party No. 3 Umesh are devar
and opposite party No. 4 Chotelal is the
father-in-law of the deceased Chandrakanti.
No specific allegations of involvement in
the alleged crime is imputes against them.

19. The apex court held in the case of
Kahkashan Kausar @ Sonam vs The
State of Bihar and Others, 2022(6) SCC
5991, has held that in such cases relatives
of husband should not be roped in on the
basis of omnibus allegations unless specific
instances of their involvement in the crime
is made out.

20. The statutory provisions under
Section 319 Cr.P.C. as has been explained
by the judgments of Hon'ble Apex Court
requires stronger quality of evidence then
merely prima facie case against the
accused. The quality of evidence should be
more stronger than prima facie case which
is required for convicting the accused of
any offence. The power provided in Section
319
Cr.P.C.,
it
is
extraordinary
discretionary power which should be used
sparingly and with due circumspection .

21. Considering the impugned order
in light of evidence on record, the statutory
provisions as interpreted by the Hon'ble
Apex Court, I do not find any illegality or
infirmity in the impugned order passed by
the trial court .

22. The Criminal Revision is
dismissed accordingly.
----------
(2024) 4 ILRA 886
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 402 of 2023

Smt. Aparna Kushwaha & Anr.
 ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri Shashank Maurya

Counsel for the Respondents:
G.A., Sri Jitendra Prasad Mishra, Sri
Prakhar Kumar Kushwaha, Sri Pramod
Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 125 & 127 -
Criminal Revision - Revisionists challenged order
dated 22.03.2022 granting interim maintenance
of Rs.5,000/- p.m. to wife and Rs.3,000/- p.m.
to daughter, seeking enhancement. Court held:
4 All. Smt. Aparna Kushwaha & Anr. Vs. State of U.P. & Anr.
887
(1) Revision maintainable as challenge was to
quantum of maintenance, not alteration under
Section 127 due to changed circumstances. (2)
Opposite party No. 2, a director and major
shareholder of Koester Pharmaceuticals Pvt. Ltd.,
had an estimated annual income of Rs.7,50,000/-
based on company's net worth, despite claims of
reduced income without evidence. (3) Wife's
educational qualifications (B.Ed, B.Com, T.E.T.)
not sufficient to presume earning capacity to
deny maintenance (Shailja Vs Khobbanna, (2018)
12 SCC 199). (4) Maintenance enhanced to
Rs.18,500/- p.m. for wife and Rs.10,000/- p.m.
for daughter, totaling Rs.28,500/- p.m., payable
from date of application, with arrears in four
instalments (Kalyan Dey Chowdhury Vs Rita Dey
Chowdhury, (2017) 14 SCC 200). Impugned
order modified. (Paras 9-21)

Criminal Revision Allowed.

List of Cases cited:

1. Anju Garg Vs Deepak Kumar Garg, (2022)
SCC OnLine SC 1314 (Para 10)

2. Dukhtar Jahan Vs Mohd. Farooq, (1987) 1
SCC 624 (Para 10)

3. Vimala (K.) Vs Veeraswamy (K.), (1991) 2
SCC 375 (Para 10)

4. Kirtikant D. Vadodaria Vs St. of Guj., (1996) 4
SCC 479 (Para 10)

5. Chaturbhuj Vs Sita Bai, (2008) 2 SCC 316
(Para 10)

6. Capt. Ramesh Chander Kaushal Vs Veena
Kaushal, (1978) 4 SCC 70 (Para 10)

7. Savitaben Somabhai Bhatiya Vs St. of Guj.,
(2005) 3 SCC 636 (Para 10)

8. Nagendrappa Natikar Vs Neelamma, (2014)
14 SCC 452 (Para 10)

9. Shailja Vs Khobbanna, (2018) 12 SCC 199
(Para 16)

10. Kalyan Dey Chowdhury Vs Rita Dey
Chowdhury, (2017) 14 SCC 200 (Para 18)
(Delivered by Hon'ble Surendra Singh - I, J.)

By means of the instant criminal
revision, revisionists have assailed the
judgement and order dated 22.03.2022
passed by Additional Principal Judge,
Family Judge Court, Court No.2, Kanpur
Nagar in Case No.591 of 2015 (Smt.
Aparna Kushwaha and another vs. Ashish
Singh Kushwaha), under Section 125
Cr.P.C. viz a viz amount of maintenance
allowance granted to them and has prayed
for enhancement of the same.

2. By the impugned order, the trial
Court has granted interim maintenance of
Rs.5,000/- per month to the revisionist
No.1 and of Rs.3,000/- per month to the
revisionist No.2 per month, under Section
125 Cr.P.C. The revisionists have prayed
for enhancement of maintenance allowance
granted by the trial Court in their favour.

3. Learned counsel for the revisionists
has submitted that marriage of revisionist
No.1-Smt.
Aparna
Kushwaha
was
solemnized according to Hindu Rites and
Rituals with opposite party No.2-Ashish
Singh Kushwaha on 17.02.2012. Parents of
the revisionist No.1 provided sufficient
dowry to the opposite party No.2 in the
aforesaid marriage. It has also been
submitted
that
opposite
party
No.2
(husband) and his family members were
physically and mentally tortured the
revisionist No.1 for bringing of one Swift
Car as additional dowry. The opposite party
No.2 is a Director and Manager of the
Koester Pharmaceuticals Private Limited
Company and is earning Rs. 1,50,000/- per
month. Revisionist No.2 (daughter) is
studying in SKD Academy, 2D/HS-1,
Vrindavan
Yojna,
Raibareilly
Road,
Lucknow, her tuition fees is about
Rs.6000/- per month, but trial Court
888 INDIAN LAW REPORTS ALLAHABAD SERIES
without considering the income of opposite
party No.2 passed the impugned order for
granting meager amount of maintenance
allowance. It has also been submitted that
trial Court had passed the impugned order
without considering the evidence on record
and without application of judicial mind.

4. Per contra, learned counsel for the
opposite party No.2 submitted that opposite
party No.2 and his family members did not
physically or mentally harass the revisionist
No.1 for dowry and they have never
demanded any kind of additional dowry.
The opposite party No.2 had resigned in the
year 2018 from the aforesaid company and
he could not join his duty due to numerous
cases filed against him by the revisionist
No.1. The opposite party No.2 is only the
founder of the aforesaid company and there
are four other members, who owned the
company. The trial Court has only
considered the profit of the company. It has
also been submitted that revisionist no.1 is
well educated and has done B.Ed, B.com
and T.E.T. and she can earn the money for
the maintenance herself as well as her
daughter. The revisionist No.1 is not
prepared to live with the opposite party
No.2. On 21.04.2015, she left her in-laws
house and living in her parental home
alongwith her daughter, since then she has
not returned to her matrimonial home.
Revisionist No.1 has also lodged an FIR
against the opposite party No.2, under
Sections 498A, 323, 504 and 506 I.P.C. and
Section 3⁄4 D.P. Act. Lastly it has been
submitted that trial Court had granted
enough amount of maintenance allowance
and there is no ground to enhance it.

5. Heard Sri Umesh Chandra
Prajapati,
learned
counsel
for
the
revisionists
and
Sri
Prakhar
Kumar
Kushwaha, learned counsel for opposite
party no.2.

6. The opposite party No.2 has not
instituted any criminal revision against the
impugned order, thus the finding recorded
by the trial Court regarding other issues i.e.
revisionist Nos.1 and 2 being wife and
daughter respectively of the opposite party
No.2 and due to sufficient reason, she is
living
separately
from
her
husband.
Revisionist No.1 has no source of income
for their livelihood. Opposite party No.2
being
capable
of
maintaining
the
revisionists and he is negligent in providing
maintenance to the revisionists has become
final.

7. Learned counsel for the opposite
party No.2 has raised preliminary objection
to the jurisdiction of this Court in view of
the provision given in Section 127 Cr.P.C.
submitting that case can be filed in the
Court of Principal Judge, Family Court for
enhancement of maintenance allowance
and criminal revision against impugned
order is not maintainable in this Court.
Section 127 Cr.P.C. provides for alteration
of maintenance allowance or interim
maintenance allowance on the ground that
circumstances have been changed since the
order was passed.

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

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

(ii) The woman in whose favour
maintenance
allowance
has
been
provided, has remarried after obtaining
4 All. Smt. Aparna Kushwaha & Anr. Vs. State of U.P. & Anr.
889
divorce such order of maintenance can be
cancelled from the date of her remarriage;

(iii) Such woman has received
whole of the sum which, under any
customary or personal law applicable to
the parties, was payable on such divorce;
 (iv) The woman has obtained
divorce from her husband and she had
voluntarily surrendered her rights to
maintenance or interim maintenance, as
the case may be, after her divorce, cancel
the order from the date thereof.

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

10. The Hon'ble Apex Court in
paragraph No.9 and 10 of the judgement in
Anju Garg and Another vs. Deepak
Kumar Garg: (2022) SCC OnLine SC
1314, has explained the scope of Section
125 Cr.P.C.which is as follows:

"9. .........., it may be noted that
Section 125 of Cr.P.C. was conceived to
ameliorate
the
agony,
anguish
and
financial suffering of a woman who is
required to leave the matrimonial home,
so that some suitable arrangements could
be made to enable her to sustain herself
and the children, as observed by this
Court in Bhuwan Mohan Singh v.
Meena1. This Court in the said case, after
referring to the earlier decisions, has
reiterated the principle of law as to how
the proceedings under Section 125 Cr.P.C
have to be dealt with by the Court. It held
as under:

"In Dukhtar Jahan v. Mohd.
Farooq [(1987) 1 SCC 624 : 1987 SCC
(Cri) 237] the Court opined that : (SCC p.
631, para 16)

16.
"...
Proceedings
under
Section 125 [of the Code], it must be
remembered, are of a summary nature
and are intended to enable destitute wives
and children, the latter whether they are
legitimate
or
illegitimate,
to
get
maintenance in a speedy manner."

8. A three-Judge Bench in
Vimala (K.) v. Veeraswamy (K.) [(1991) 2
SCC 375 : 1991 SCC (Cri) 442], while
discussing about the basic purpose under
Section 125 of the Code, opined that :
(SCC p. 378, para 3)

3. "Section 125 of the Code of
Criminal Procedure is meant to achieve a
social purpose. The object is to prevent
vagrancy and destitution. It provides a
speedy remedy for the supply of food,
clothing, and shelter to the deserted wife."

9.
A
two-Judge
Bench
in
Kirtikant D. Vadodaria v. State of Gujarat
[(1996) 4 SCC 479 : 1996 SCC (Cri) 762],
while adverting to the dominant purpose
behind Section 125 of the Code, ruled that
: (SCC p. 489, para 15)

15. "... While dealing with the
ambit
and
scope
of
the
provision
contained in Section 125 of the Code, it
has to be borne in mind that the dominant
and primary object is to give social justice
to the woman, child and infirm parents,
etc. and to prevent destitution and
vagrancy by compelling those who can
support those who are unable to support
themselves but have a moral claim for
support. The provisions in Section 125
provide a speedy remedy to those women,
children and destitute parents who are in
distress. The provisions in Section 125 are
890 INDIAN LAW REPORTS ALLAHABAD SERIES
intended to achieve this special purpose.
The
dominant
purpose
behind
the
benevolent
provisions
contained
in
Section 125 clearly is that the wife, child
and parents should not be left in a
helpless state of distress, destitution and
starvation."

10. In Chaturbhuj v. Sita Bai
[(2008) 2 SCC 316 : (2008) 1 SCC (Civ)
547 : (2008) 1 SCC (Cri) 356], reiterating
the legal position the Court held : (SCC p.
320, para 6)
 6. "... Section 125 CrPC is a
measure of social justice and is specially
enacted to protect women and children and
as noted by this Court in Capt. Ramesh
Chander Kaushal v. Veena Kaushal [(1978)
4 SCC 70 : 1978 SCC (Cri) 508] falls within
constitutional
sweep
of
Article
15(3)
reinforced by Article 39 of the Constitution
of India. It is meant to achieve a social
purpose. The object is to prevent vagrancy
and destitution. It provides a speedy remedy
for the supply of food, clothing and shelter
to the deserted wife. It gives effect to
fundamental rights and natural duties of a
man to maintain his wife, children and
parents when they are unable to maintain
themselves. The aforesaid position was
highlighted in Savitaben Somabhai Bhatiya
v. State of Gujarat [(2005) 3 SCC 636 : 2005
SCC (Cri) 787]."

11. Recently in Nagendrappa
Natikar v. Neelamma [(2014) 14 SCC 452
: (2015) 1 SCC (Cri) 407 : (2015) 1 SCC
(Civ) 346], it has been stated that it is a
piece of social legislation which provides
for a summary and speedy relief by way of
maintenance to a wife who is unable to
maintain herself and her children".

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

11. As per the averments made by the
revisionist No.1, in her affidavit filed in
support of the criminal revision, submitted
that earlier opposite party No.2 used to
work as senior area manager in Somatic
Healthcare Pvt. Ltd. Company and later
on,
same
was
named
as
Koester
Pharmaceuticals
Private
Limited
Company and earns about Rs.1,50,000/-
per month. Revisionist No.1 has filed
certificate of registration of company,
which is annexed as Annexure-4 to the
revision
regarding
Incorporation
of
Somatic Healthcare Pvt. Ltd. as Koester
Pharmaceuticals Private Limited Company,
which was registered.

12.

From
the
perusal
of
the
Memorandum of Association of aforesaid
4 All. Smt. Aparna Kushwaha & Anr. Vs. State of U.P. & Anr.
891
company, it transpires that although this
company has total five share-holders, but
opposite party No.2 is main share-holder
and Director of the company. The
revisionist also filed statements, informations
or particulars in respect of profit and loss of
the aforesaid company, which is annexed as
Annexure-5. The total revenue of the
company has shown as Rs.77, 27,640.93/-
from 01.04.2020 to 31.03.2021. In this
aforesaid statements, profit of the company is
shown as Rs.3,38,069.09/- and tax paid on
the company as Rs.65,504/-, but in segmentIII of the statement, which relates Reporting
of Corporate Social Responsibility (CSR), the
net worth of the company is shown as
Rs.12,97,252.21/-. Thus, according to the
statement relating to CSR, the net annual
income of the company is of Rs.12,97,
252.21/-

13. Averments has been made by
opposite party No.2, in his counter
affidavit, that the actual profit of the
aforesaid company for the year 2020 to
2021 is only of Rs.3,38,069/-.

14. Revisionist No.1, in her rejoinder
affidavit, pleaded that her husband/opposite
party No.2 has also agricultural land, for
which, she has attached khatauni of 1378
fasli of seven plots of land total area 1.5020
hec. From the khatauni of the aforesaid
land, which is annexed as Annexure-6 to
the affidavit filed by the revisionist, it
appears that total six co-tenure holders in
the aforesaid land, whereas the averments
has been made by the opposite party No.2,
in his affidavit, that aforesaid land is on the
name of his father alongwith other cotenure holders. Revisionist has also stated,
in
her
affidavit,
that
her
daughter
/revisionist No.2 is studying in SKD
Academy, 2D/HS-1, Vrindavan Yojna,
Raibareilly Road, Lucknow and fees and
other expenses of the aforesaid school is
bear by father of the revisionist No.1 and
opposite party No.2 does not pay any
amount for it.

15. From the above discussion, it
transpires that opposite party No.2 is a
Director of the said company and big
shareholder, therefore, 50% of the net
profit of the company can be considered as
annual income of the opposite party No.2
for the year 2020-2021. Hence, annual
income of the opposite party No.2 can be
presumed to have been increased and it can
be
fixed
at
Rs.7,50,000/-
(approx).
Although, opposite party No.2 has made
averments, in his counter affidavit, that
there was decline in his income from his
company, but no documentary evidence has
been
submitted
in
support
of
this
arguments. Apart from this aforesaid
annual
income
of
Rs.7,50,000/-,
agricultural land is in the name of his father
though presently he has no right or interest
in that agricultural land.

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

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

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

18. In Kalyan Dey Chowdhury vs.
Rita Dey Chowdhury Nee Nandy: (2017)
14 SCC 200 has held that 25% of the
husband's net salary would be just and
proper to be awarded as maintenance to the
wife.

19. Taking into consideration the
income of the opposite party No.2, it may
be just and reasonable that he may provide
Rs.10,000/- per month as maintenance
allowance to his daughter.

20. From the above discussion, I am
of the view that the maintenance allowance
fixed by the trial Court in the impugned
order should be modified and maintenance
allowance provided by the trial Court to the
revisionist
Nos.1
and
2
should
be
enhanced. It is provided that revisionist
No.1 (wife) shall be granted for Rs.18,500/-
per month as maintenance allowance as
well as Rs.10,000/- per month for her
minor daughter.

21. Thus, opposite party No.2 shall be
bound to provide maintenance allowance of
Rs.18,500/-
per
month
to
his
wife
(revisionist No.1) and Rs.10,000/- for his
minor daughter (revisionist No.2), total
Rs.28,500/- per month payable to the
revisionists from the date of application.
The arrears of maintenance allowance shall
be paid by the opposite party No.2 in four
equal instalments at the interval of four
months. The monthly interim maintenance
shall be paid regularly till 10th of each
month.
The
amount
of
maintenance
allowance already paid shall be set-off
against this amount. The order impugned
dated 22.03.2022 is modified.

22. The present criminal revision is
allowed and impugned order is modified as
mentioned above.

23. The copy of the order be sent to
the trial Court concerned forthwith for
necessary compliance.
----------
(2024) 4 ILRA 892
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 557 of 2023

Juvenile X ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Nafees Ahmad, Sri Jai Prakash

Counsel for the Respondents:
G.A., Sri Santosh Kumar Upadhyay, Sri
Rishabh Kumar Pandey, Sri Vinod Kumar
Upadhyay

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323/34, 302, 504,
395 & 412 - Determination of Age -
Revisionist was involved under aforesaid
sections and produced before J.J.Board -
Upon
age
determination
inquiry,
supported
by
evidence
and
medical
opinion, two Board members held him to
be 16 years and 6 months old on date of
incident, while on same day, Principal
Magistrate, on same material, found him
above 18 years and directed transfer of