# Smt. Raj Kumari Revisionist v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 502
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** Agra in Criminal Case No.812 of 2014
- **Bench:** Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-kumari-revisionist-v-state-of-u-p-anr-45006
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 397/401 &
Section 125 - challenge to - amount of
maintenance from the date of order not
from the date of application filed and the
amount is meagre- Learned lower court
has
awarded
Rs.2,500/-
the
maintenance amount for the revisionist,
accordingly Rs.83.33/- per day comes to
revisionist
for
her
maintenance.
At
present considering the price hike and
higher cost of living it cannot be
presumed that Rs.83.33/- is sufficient
for a lady to maintain herself. the
amount fixed by the court below is
insufficient as according to present
scenario, the revisionist is entitled to
receive minimum Rs.5,000/- per month
as maintenance from the date of filing of
application. (Para 17 & 18)
B. Criminal Law - Sub-clause 2 of Section
125 Cr.P.C. make the provisions that
allowance shall be payable either from
the date of order or from the date of
application for maintenance. This subclause provides discretionary power to
Magistrate
but
this
power
is
not
absolute.
Discretion
inherits
judicial
discretion; therefore, the law requires
that if the Court passes the order of
maintenance payable not from the date
of application but from the date of order
than in that case the court has to give
reason for that. (Para10)

Order has been passed without judicial
application of mind, the order can be
challenged under revisional jurisdiction. In
present case, the court of Principal Judge
Family Court, Agra has not given any reason
for passing the order to pay amount of
maintenance from the date of order. (Para 11)

Criminal Revision allowed. (E-6)

List of cases cited: -

## Text

502 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The revision is dismissed at
admission stage.

14. Copy of this order be transmitted
to the Court concerned immediately.
----------

(2019)12 ILR A502

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE
THE HON'BLE NARENDRA KUMAR
JOHARI, J.

Criminal Revision No. 3025 OF 2016

Smt. Raj Kumari ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Irfan Hasan, Sri Kamlesh Kumar
Tiwari, Sri Kripa Shankar Pandey

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 397/401 &
Section 125 - challenge to - amount of
maintenance from the date of order not
from the date of application filed and the
amount is meagre- Learned lower court
has
awarded
Rs.2,500/-
the
maintenance amount for the revisionist,
accordingly Rs.83.33/- per day comes to
revisionist
for
her
maintenance.
At
present considering the price hike and
higher cost of living it cannot be
presumed that Rs.83.33/- is sufficient
for a lady to maintain herself. the
amount fixed by the court below is
insufficient as according to present
scenario, the revisionist is entitled to
receive minimum Rs.5,000/- per month
as maintenance from the date of filing of
application. (Para 17 & 18)
B. Criminal Law - Sub-clause 2 of Section
125 Cr.P.C. make the provisions that
allowance shall be payable either from
the date of order or from the date of
application for maintenance. This subclause provides discretionary power to
Magistrate
but
this
power
is
not
absolute.
Discretion
inherits
judicial
discretion; therefore, the law requires
that if the Court passes the order of
maintenance payable not from the date
of application but from the date of order
than in that case the court has to give
reason for that. (Para10)

Order has been passed without judicial
application of mind, the order can be
challenged under revisional jurisdiction. In
present case, the court of Principal Judge
Family Court, Agra has not given any reason
for passing the order to pay amount of
maintenance from the date of order. (Para 11)

Criminal Revision allowed. (E-6)

List of cases cited: -

1. Shail Kumar Devi Vs. Krishan Bhagwan
Pathak @ Kishun B Pathak decision dated
28.7.2008 [2008 LawSuits (SC) 1030].

2. Jaiminiben Hirenbhai Vyas & Anr Vs.
Hirenbhai Rameshchandra Vyas & Anr decision
dated 19.11.2014 [2014 LawSuit (SC)916]

3. Chandrapal vs Harpyari And Anr. reported in
1991 CRI. L. J. 2847

4. Basanta Kumari Mohanty Vs. Sarat Kumar
Mohanty reported in 1982 CRI. L.J. 485

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. The present revision has been
filed by revisionist- Raj Kumari against
the judgment and order dated 22.7.2016
passed by Principal Judge Family Court,
Agra in Criminal Case No.812 of 2014
"Smt. Raj Kumari Vs. Daya Sankar"
under
Section
125
Cr.P.C.
4 All. Smt. Raj Kumari Vs. State of U.P. & Anr.
503

2. The revisionist challenged the
order under revision mainly on two
grounds:-

(a) the Sub-ordinate Court has
awarded the amount of maintenance from
the date of order which is not proper, it
should be from the date of filing of the
application under Section 125 Cr.P.C.;

(b) the amount of compensation
fixed by the court is meagre and is liable
to be enhanced.

The brief fact of the case is that
revisionist is wife and opposite party no.2 is
husband. It has been mentioned that the
revisionist was married with opposite party
no.2 on 16.2.2010, at the time of marriage,
father of the revisionist had given sufficient
articles as dowry like jewelries and cash
amount Rs.50,000/- as according to his
capacity but opposite party no.2 and the
family members of opposite party no.2 were
not satisfied by the dowry given by father of
the revisionist. They were demanding motorcycle and Rs.50,000/- cash as additional
dowry. In furtherance and their demand
opposite party no.2 and his family members
were started torturing to the revisionist. In
continuance of her torture, on 23.5.2014
opposite party no.2 and his family members
locked to revisionist and her sister Sanju in a
room, beaten and threaten for life. On the
same date opposite party dropped to
revisionist and her sister near St. John's
Chauraha, Agra and told that unless his
aforesaid demand of dowry fulfill she will
stay to his father's home. Further on
12.9.2014 father of revisionist reached at the
residence of opposite party no.2 alongwith
his relatives for compromise. Opposite party
no.2 and their family members again
demanded motor-cycle and cash money as
additional dowry and started abusing. The
opposite party and his family member also
not accepted to revisionist at their residence.
After her desertion, opposite party no.2 has
neither taken any care of revisionist, nor given
any money for her maintenance. Opposite
party no.2 is doing the business of ornament
making and earns Rs.50,000/-. He possess
some agricultural land also. His income from
agricultural land is Rs.5,00,000/- per annum.
The revisionist is a domestic lady. She is not
doing any work and absolutely depend on her
father. The revisionist prayed that she may be
provided
Rs.10,000/-
per
month
as
maintenance from her husband.

3. During the proceedings in trial
court, notice for appearance was issued to
opposite party which was served on him
but he did not appeared and the court
proceed ex-party against him.

4.

In
ex-parte
hearing
revisionist/applicant
filed
affidavit
in
support of her application and the court
concerned has passed the order dated
22.7.2016 that from the date of order
opposite party no.2 will pay amount of
Rs.2,500/- per month for the maintenance of
revisionist/applicant.
The
revisionist/
applicant challenged the said order mainly
on the two grounds as noted above.

5. During the proceeding of the
revision the notice was issued to opposite
party no.2 which was served personally
but opposite party did not put his
appearance before the court.

6. Heard learned counsel for the
revisionist
and
perused
the
record.
Learned counsel for the revisionist has
submitted the following case laws:-

1. Shail Kumar Devi Vs.
Krishan Bhagwan Pathak @ Kishun B
Pathak decision dated 28.7.2008 [2008
LawSuits (SC) 1030].
504 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Jaiminiben Hirenbhai Vyas
& Anr Vs. Hirenbhai Rameshchandra
Vyas & Anr decision dated 19.11.2014
[2014 LawSuit (SC)916]

7. The learned court below while
considering the averments of application
relied on affidavit of revisionist and
concluded
that
although
applicant/revisionist has not filed any
documentary
evidence
regarding
the
income of opposite party but it appears
that opposite party no.2 is capable to
provide maintenance to his wife which is
his moral duty also. The court has also
concluded that revisionist/applicant is a
domestic lady, she is not doing any work
and is depend on her father.

8. If a husband having sufficient
means neglects or refuses to maintain his
wife who is unable to maintain herself, a
Magistrate of competent jurisdiction may
pass order under Section 125 Cr.P.C.
against husband to make a monthly
allowance for the maintenance of his
wife. The provisions of Section 125
Cr.P.C. reads as under:-

"125. Order for maintenance
of wives, children and parents.-

(1)
If
any
person
having
sufficient means neglects or refuses to
maintain-

(a) his wife, unable to maintain
herself, or

(b) his legitimate or illegitimate
minor child, whether married or not,
unable to maintain itself, or

(c) his legitimate or illegitimate
child (not being a married daughter) who
has attained majority, where such child is,
by reason of any physical or mental
abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable
to maintain himself or herself,

a Magistrate of the first class
may, upon proof of such neglect or
refusal, order such person to make a
monthly allowance for the maintenance of
his wife or such child, father or mother, at
such monthly rate not exceeding five
hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same
to such person as the Magistrate may
from time to time direct:

Provided that the Magistrate
may order the father of a minor female
child referred to in clause (b) to make
such allowance, until she attains her
majority, if the Magistrate is satisfied that
the husband of such minor female child, if
married, is not possessed of sufficient
means:

Provided
further
that
the
Magistrate may, during the pendency of
the
proceeding
regarding
monthly
allowance for the maintenance under this
sub- section, order such person to make a
monthly
allowance
for
the
interim
maintenance of his wife or such child,
father or mother, and the expenses of such
proceeding
which
the
Magistrate
considers reasonable, and to pay the
same to such person as the Magistrate
may from time to time direct:

Provided
also
that
an
application for the monthly allowance for
the interim maintenance and expenses of
proceeding under the second proviso
shall, as far as possible, be disposed of
within sixty days from the date of the
service of notice of the application to such
person.

Explanation.- For the purposes
of this Chapter,-

(a) " minor" means a person
who, under the provisions of the Indian
4 All. Smt. Raj Kumari Vs. State of U.P. & Anr.
505
Majority Act, 1875 (9 of 1875 ); is
deemed not to have attained his majority;

(b) "wife" includes a woman
who has been divorced by, or has
obtained a divorce from, her husband and
has not remarried.

(2) Any such allowance shall be
payable from the date of the order, or, if
so ordered, from the date of the
application for maintenance or interim
maintenance
and
expenses
of
proceedings, as the case may be.

(3) If any person so ordered
fails without sufficient cause to comply
with the order, any such Magistrate may,
for every breach of the order, issue a
warrant for levying the amount due in the
manner provided for levying fines, and
may sentence such person, for the whole
or any part of each month' s allowances
remaining unpaid after the execution of
the warrant, to imprisonment for a term
which may extend to one month or until
payment if sooner made:

 Provided that no warrant shall
be issued for the recovery of any amount
due under this section unless application
be made to the Court to levy such amount
within a period of one year from the date
on which it became due:

Provided further that if such
person offers to maintain his wife on
condition of her living with him, and she
refuses to live with him, such Magistrate
may consider any grounds of refusal
stated by her, and may make an order
under this section notwithstanding such
offer, if he is satisfied that there is just
ground for so doing.

Explanation.- If a husband has
contracted marriage with another woman
or keeps a mistress, it shall be considered
to be just ground for his wife' s refusal to
live with him.

(4) No Wife shall be entitled to
receive an allowance 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.

(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."

9. The right of a destitute wife to get
maintenance is essentially a civil right
accordingly the remedy provided under
Chapter IX of Cr.P.C. The procedure laid
down in this Chapter is enacted as a
measure of social justice and are dealt
with summoning in a criminal Court for
the purposes of speedy disposal on
grounds of convenience and social order.

10. Sub-clause 2 of Section 125
Cr.P.C.
make
the
provisions
that
allowance shall be payable either from the
date of order or from the date of
application for maintenance. This subclause provides discretionary power to
Magistrate but this power is not absolute.
Discretion inherits judicial discretion,
therefore the law requires that if the Court
passes the order of maintenance payable
not from the date of application but from
the date of order than in that case the
court has to give reason for that.

11. Although, the Revisional Court
cannot interfere in the finding of fact but
when it is shown that impugned order has
been passed without judicial application
of mind, the order can be challenged
under revisional jurisdiction. In present
506 INDIAN LAW REPORTS ALLAHABAD SERIES
case, the court of Principal Judge Family
Court, Agra has not given any reason for
passing the order to pay amount of
maintenance from the date of order.

12. Certified copy of application
under Section 125 Cr.P.C. is available on
record at page No.14 which indicates that
on 12.9.2014 opposite party no.2 has not
permitted petitioner to enter in her
matrimonial house. The petition was filed
on dated 15.9.2014. On the date of
application the petitioner was residing in
deserted
condition
which
has
been
specifically mentioned in para 7 of the
application also. The above fact is
sufficient to infer that petitioner was not
being
maintained
by
her
husband,
therefore, it appears prima facie that she
was entitled to get maintenance money
from the date of filing of application
under Section 125 Cr.P.C..

13. In the case of Jaiminiben
Hirenbhai Vyas & Anr. Vs Hirenbhai
Rameshchandra Vyas & Anr. [2014
LawSuits (SC) 916 decided on 19
November, 2014. It has been held by the
Hon'ble Apex Court in para 8 and 9:-

"8. In Shalil Kumari Devi Vs.
Krishan Bhagawn Pathak this Court
dealt with the question as to from which
date a Magistrate may order payment of
maintenance to wife, children or parents.
In
Shail
Kumar
Devi,
this
Court
considered a catena of decisions by the
various High Courts, before arriving at
the conclusion that it was incorrect to
hold that, as a normal rule, the
Magistrate should grant maintenance
only from the date of the order and not
from the date of the application for
maintenance. It is, therefore, open to the
Magistrate to award maintenance from
the date of application. The Court held,
and we agree, that if the Magistrate
intends to pass such an order, he is
required to record reasons in support of
such Order. Thus, such maintenance can
be awarded from the date of the Order,
or, if so ordered, from the date of the
application for maintenance, as the case
may be. For awarding maintenance from
the date of the application, express order
is necessary.

9. In the case before us, the
High Court has not given any reason for
not granting maintenance from the date of
the application. We are of the view that
the circumstances eminently justified
grant of maintenance with effect from the
date of the application in view of the
finding that the Appellant had worked
before marriage and had not done so
during her marriage. There was no
evidence of her income during the period
the parties lived as man and wife. We,
therefore reverse the Order of the High
Court in this regard and direct that the
respondent shall pay the amount of
maintenance found payable from the date
of the application for maintenance. As far
as maintenance granted under Section 24
of the H.M. Act by the Courts below is
concerned, it shall remain unaltered."
 (emphasized )

14. In the case of Shail Kumari
Devi & Anr Vs Krishan Bhagwan
Pathak @ Kishun B [2008 LawSuit(SC)
1030] decided on 28 July, 2008. It has
been held by Hon'ble Supreme Court in
para 44:-

"44. In our considered opinion,
the High Court is not right in holding that
as a normal rule, the Magistrate should
grant maintenance only from the date of
the order and not from the date of the
application for maintenance. And if he
4 All. Smt. Raj Kumari Vs. State of U.P. & Anr.
507
intents to pass such an order, he is
required to record reasons in support of
such order. As observed in K. Sivaram,
reasons have to be recorded in both the
eventualities. The Court was also right in
observing
that
wherever
Parliament
intended the Court to record special
reasons, care had been taken to make
such provision by requiring the Court to
record such reasons. " (emphasized )

15.

Revisionist/applicant
has
mentioned in para 9 of the application
that, opposite party is doing the job of
making gold and silver ornaments and
earns Rs.50,000/- apart from that he has
agricultural land also by which he earns
Rs.5,00,000/- per annum. Admittedly the
revisionist/applicant had not filed any
documentary evidence regarding business
or regarding ownership of agricultural
land, but there is no ground to presume
that opposite party no.2 was not a
physically fit person. Learned lower court
has also concluded in its order/judgment
dated 22.7.2016 that opposite party no.2
is capable and competent person. If a man
is healthy and able bodied he must be held
to possess sufficient money to support his
wife, children and parents. Sufficient
means should not be confined to the
actual pecuniary resources but should
have reference to the earning capacity.
The wording "Means" as used in the
provision does not mean the tangible
property or income only but also his
capacity, potentialities and status of
living.

It has been held by this court in
the case of Chandrapal vs Harpyari
And Anr. reported in 1991 CRI. L. J.
2847 that-

"13. In the case of Mohammad
Ayyub Vs. Zaibul Nissa, 1974 (Vol. 2)
Criminal Law Journal 1237 this Court
held that the quantum of allowance
directed to be paid by the husband to the
wife has relevance to his means. Where
the Magistrate does not give any thought
to the question as to what are the means
existing or potential of the husband
Justifying an order for payment or
allowance to his wife, the order is liable
to be set aside. " (emphasized )

On this point the another Bench
of Orissa High Court in the case of
Basanta Kumari Mohanty Vs. Sarat
Kumar Mohanty reported in 1982 CRI.
L.J. 485 held in para 7 that:-

"7. No doubt an order Under
Section 125 can be passed only if a
person having sufficient means neglects
or refuses to maintain his wife, child,
parents etc. It is, however, well settled
that the expression 'means' occurring in
Section 125 does not signify only visible
means, such as, real property or definite
employment and if a man is healthy and
able-bodied, he must be held to be
possessed of means to support his wife,
child etc. The Courts have gone to the
extent of laying down that the husband
may be insolvent or a professional beggar
or a minor or a monk, but he must support
his wife so long as he is able-bodied and
can eke out his livelihood. "

Therefore, if the opposite party
has not put his appearance in the case and
led any evidence regarding his earnings,
an inference can be drawn against him on
the basis of material available on record.

16. It should not be forgotten that
under Section 401 Cr.P.C. a revisional
court can make any amendment or any
consequential or incidental order that may
be just or proper. In this connection
provisions of Section 401(1) and 386(e)
508 INDIAN LAW REPORTS ALLAHABAD SERIES
can be referred to. Provisions of Section
125 Cr.P.C. have been engrafted in
Criminal Procedure Code for preventing
destitution or vagrancy and providing
succour to starving persons. It is to be
find out as to what is required by the wife
to maintain the standard of living which is
neither luxurious nor penury but is
modestly consistent with the status of
family. In the present case, learned lower
Court has awarded Rs. 2,500/- per month
has maintenance amount of revisionist.
Learned counsel for the revisionist has
submitted that from 2014 the revisionist is
living in mercy-full condition.

17. Learned lower court has awarded
Rs.2,500/- the maintenance amount for the
revisionist, accordingly Rs.83.33/- per day
comes to revisionist for her maintenance. At
present considering the price hike and higher
cost of living it cannot be presumed that
Rs.83.33/- is sufficient for a lady to maintain
herself. In my opinion, the amount fixed by
the court below is insufficient as according to
present scenario, the revisionist is entitled to
receive minimum Rs.5,000/- per month as
maintenance.

18.

Taking
the
facts
and
circumstances
of
the
case
into
consideration, the judgment of court
below dated 22.7.2016 is liable to be
modified upto the extent that applicant is
entitled to receive Rs.5,000/- per month as
maintenance from the date of filing of
application under Section 125 Cr.P.C.

19. In the result, the revision is
allowed.
----------
(2019)12 ILR A508

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2019
BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Revision No. 4167 OF 2019

Radheshyam @ Anil ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Vijay Kumar Dubey

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

A. Criminal Law - Code of Criminal
Procedure, 1973 - Sections 397/401 &
section
125-
examination-in-chief
of
wife was recorded- counsel for the
husband-revisionist did not appear-the
opportunity of her cross-examination of
wife was closed-the court grants at least
one
further
opportunity
to
crossexamine the wife. (Para 3 & 6)

The Court finds that though no serious
castigation against the impugned order may
be levelled and it cannot be said that the same
suffers from any element of perversity but
when the overall cause of justice is evaluated
and weighed and the principles of fairness and
equity are kept in perspective this Court
adopts a view which may not only meet the
ends of justice but may also result in adopting
a correct approach in order to arrive at the
ends of justice. Leaving a wife uncrossexamined is likely to result in creating obstacle
in correctly appreciating the evidence and to
that extent and in that context the approach
adopted by the court below may not be said to
be a correct one. (Para 6)

Criminal Revision allowed. (E-6)

(Delivered by Hon'ble Karuna Nand
Bajpayee, J.)

1. This revision has been preferred
with the prayer to set aside the impugned
order dated 21.10.2019 passed by the