# Smt. Shaily Mittal & Ors. Revisionists v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 4 ILRA 898
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-10
- **Case number:** Criminal Revision No. 1516 of 2023
- **Bench:** Surendra Singh - I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shaily-mittal-ors-revisionists-v-state-of-u-p-anr-opp-parties-51867
- **Pages:** 9

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 125 & 127 -
Family Courts Act, 1984 - Section 19 -
Maintenance to wife and children -
Revisional jurisdiction of High Court -
Determination of husband's income -
Quantum of maintenance

Held: Maintainability of Revision Proceedings
under Section 125 Cr.P.C. fall within Chapter IX of
the Code. By virtue of Section 19(2) of the Family
Courts Act, no appeal lies against orders passed
under Chapter IX. Section 19(4) expressly
preserves the High Court's revisional jurisdiction to
examine the correctness, legality, propriety, or
regularity of such orders.Held, a criminal revision
before the High Court is maintainable; objection
that only an appeal under Section 19(1) lies was
rightly rejected.

Scope of Section 127 Cr.P.C. Section 127
Cr.P.C. applies where there is a subsequent
change in circumstances warranting alteration of
maintenance. Where the challenge is to the
original quantum fixed as being contrary to the
evidence on record, the proper remedy is a
revision before the High Court. Held, the
contention that enhancement could be sought
only under Section 127 Cr.P.C. before the
Family Court was misconceived.

Earning Capacity vs. Actual Income of
Wife Mere educational qualification or capacity
to earn does not amount to proof of actual
income. Absence of evidence of real earning
disentitles the husband from seeking reduction
of
maintenance
on
that
ground
alone.
Reiterated, capability to earn is distinct from
actual earning.

Assessment
of
Husband's
Income
Husband's financial capacity may be assessed
on
the
basis
of
admissions,
lifestyle,
investments, bank accounts, fixed deposits,
provident fund, property purchases, and regular
filing of income tax returns. A bald plea of
meagre income, when contradicted by financial
conduct and assets, deserves rejection. Held,
husband's claimed income of ₹7,000-8,000/-
per month was unbelievable; his income
reasonably assessed at not less than ₹60,000/-
per month.

Principles
Governing
Quantum
of
Maintenance Ordinarily, around 25% of the
husband's income constitutes a just and
reasonable
share
towards
the
wife's
maintenance. Adequate provision must also be
made for the education and future prospects of
minor children, particularly where they are
pursuing or preparing for professional courses.

Interference in Revision Where the Family
Court fixes maintenance ignoring material
evidence of the husband's financial capacity and
grants an unjustly low amount, interference in
revision is warranted. Held, the maintenance
awarded was grossly inadequate and liable to
enhancement.

Criminal Revision partly allowed.

List od Cases cited:

## Text

898 INDIAN LAW REPORTS ALLAHABAD SERIES
the
basis
of
medical
opinion
by
radiological examination. Such evidence
is not conclusive evidence but only a very
useful guiding factor to be considered in
the absence of documents mentioned in
Section 94(2) of the JJ Act, 2015."

It appears that the Supreme Court has
not put any fetters on the powers of the
court to seek evidence of any other kind, if
the evidence as mentioned in section 94 of
the J.J. Act, 2015 is found inadequate,
false, fabricated and unreliable. In several
cases the Supreme Court has found the
entries in pariwar register and other
documentary evidence as relevant and
having some value as far as the date of
birth is concerned.

11. The court concerned may be
impelled to determine the age considering
the margin of error, in the background of
other material available. There is no
absolute law that in all the cases, two years
or even one year is to be mandatorily
reduced from the medical age, ignoring all
other material whether that tended to rebut
or tended to corroborate the medical age.

12. As far as the instant case is
concerned, it appears that there was no
good material before the court concerned to
corroborate or to calculate the age by
reducing it or increasing it with certain
margins. In such circumstances, the proper
course, which ought to have been adopted
by the J.J. Board, is to probe further in the
matter and to obtain other evidence as may
be available. In my opinion, the J.J. Board
should have sought evidence on its own
initiative rather than depending upon the
parties, as the ultimate responsibility lies on
it only. The appellate court failed to notice
the lack of material and treated the medical
evidence as conclusive proof of age.

13. In the peculiar circumstances of
the case, I am of the view that J.J. Board
should be directed to obtain further
evidence as regard age by recalling the
witness for further examination or crossexamination and also call for documentary
evidence as might be available in other
records which may include the pariwar
register, or any other document which may
assist the court/the J.J. Board in arriving at
the right conclusion. The J.J. Board can call
for
additional
witnesses
as
per
its
discretion. In such cases, where attempts
are made to mislead the court by producing
suspicious and doubtful documents, the
court ought to be more cautious and
careful. No law bars the court to adopt a
proactive approach and to look for truth.

14. In view of the above this revision
is allowed. The impugned order dated
01.10.2022, passed by learned Sessions
Judge/Special
Judge
(POCSO
Act)/Children Court, District Meerut, is
hereby set aside.

15. The matter is remanded back to
the J.J. Board to hold further inquiry and
determine the age, in accordance with law.
----------
(2024) 4 ILRA 898
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 1516 of 2023

Smt. Shaily Mittal & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Sumit Daga
4 All. Smt. Shaily Mittal & Ors. Vs. State of U.P. & Anr.
899
Counsel for the Opp. Parties:
G.A., Sri Rajesh Yadav, Sri Rajavtar Singh,
Sri Pankaj Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 125 & 127 -
Family Courts Act, 1984 - Section 19 -
Maintenance to wife and children -
Revisional jurisdiction of High Court -
Determination of husband's income -
Quantum of maintenance

Held: Maintainability of Revision Proceedings
under Section 125 Cr.P.C. fall within Chapter IX of
the Code. By virtue of Section 19(2) of the Family
Courts Act, no appeal lies against orders passed
under Chapter IX. Section 19(4) expressly
preserves the High Court's revisional jurisdiction to
examine the correctness, legality, propriety, or
regularity of such orders.Held, a criminal revision
before the High Court is maintainable; objection
that only an appeal under Section 19(1) lies was
rightly rejected.

Scope of Section 127 Cr.P.C. Section 127
Cr.P.C. applies where there is a subsequent
change in circumstances warranting alteration of
maintenance. Where the challenge is to the
original quantum fixed as being contrary to the
evidence on record, the proper remedy is a
revision before the High Court. Held, the
contention that enhancement could be sought
only under Section 127 Cr.P.C. before the
Family Court was misconceived.

Earning Capacity vs. Actual Income of
Wife Mere educational qualification or capacity
to earn does not amount to proof of actual
income. Absence of evidence of real earning
disentitles the husband from seeking reduction
of
maintenance
on
that
ground
alone.
Reiterated, capability to earn is distinct from
actual earning.

Assessment
of
Husband's
Income
Husband's financial capacity may be assessed
on
the
basis
of
admissions,
lifestyle,
investments, bank accounts, fixed deposits,
provident fund, property purchases, and regular
filing of income tax returns. A bald plea of
meagre income, when contradicted by financial
conduct and assets, deserves rejection. Held,
husband's claimed income of ₹7,000-8,000/-
per month was unbelievable; his income
reasonably assessed at not less than ₹60,000/-
per month.

Principles
Governing
Quantum
of
Maintenance Ordinarily, around 25% of the
husband's income constitutes a just and
reasonable
share
towards
the
wife's
maintenance. Adequate provision must also be
made for the education and future prospects of
minor children, particularly where they are
pursuing or preparing for professional courses.

Interference in Revision Where the Family
Court fixes maintenance ignoring material
evidence of the husband's financial capacity and
grants an unjustly low amount, interference in
revision is warranted. Held, the maintenance
awarded was grossly inadequate and liable to
enhancement.

Criminal Revision partly allowed.

List od Cases cited:

1. Shailja & Another v. Khobbanna (2018) 12
SCC 199

2.
Kalyan
Dey
Chowdhury
v.
Rita
Dey
Chowdhury nee Nandy (2017) 14 SCC 200

(Delivered by Hon'ble Surendra Singh - I, J.)

Heard Sri Sumit Daga, learned counsel
for the revisionists and Sri Rajavtar Singh,
Advocate assisted by Sri Pankaj Kumar,
learned counsel for the opposite party No.2.

2. By means of the instant criminal
revision, revisionists have assailed the
judgement and order dated 25.01.2023
passed by the Principal Judge, Family
Court, Muzaffarnagar in Case No.269 of
2014 (Computerized No. UPMZ 0200184
62014) (Smt. Shaily Mittal & others vs.
Brijesh Kumar), under Section 125 Cr.P.C.

3. By the impugned order, the trial
Court has granted interim maintenance of
900 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.7,000/- to the revisionist No.1 and
Rs.2,000/- to the revisionist Nos.2 and 3
per month each, under Section 125 Cr.P.C.
The revisionists have prayed in the revision
for enhancement of maintenance allowance
granted by the trial Court in their favour.

4. It has been submitted by the
learned counsel for the revisionists that
before
calculating
the
quantum
of
maintenance, the trial court has not taken
into consideration the income of the
opposite party No.2 (husband). It has also
been submitted that opposite party No.2, in
his cross-examination, has admitted that he
has National Saving Certificates (N.S.C.),
Rs.45,000/- in his PPF Account and F.D.R.
of Rs.11,00,000/- but without considering
the same, trial Court granted meagre
amount of maintenance allowance to the
revisionists.

5. It has been submitted by learned
counsel for the revisionist that the trial
Court illegally came to the conclusion that
revisionist No.1 did not prove the income
of the opposite party No.2, in fact the
revisionist
No.1
by
her
oral
and
documentary evidence has very well
proved that opposite party No.2 has huge
source of income and also many properties.
Therefore, the trial Court had committed
illegality
in
allowing
maintenance
allowance to the revisionists. It has also
been submitted that opposite party No.2 is
a co-partner in his family business of Saree
and he is earning half of the total income
arising out of aforesaid family business, but
trial Court has wrongly considered that the
owner of the aforesaid business was his
brother, namely, Rajesh Kumar Mittal and
opposite party No.2 was working there as
salesman drawing salary of Rs.7000/- per
month only. It has also been submitted that
opposite party No.2 has not filed any
criminal revision against the impugned
judgment and order, therefore, finding of
the trial Court regarding the matter other
then quantum of maintenance allowance to
be payable to the revisionists has become
final.

6. Learned counsel for the revisionists
has placed reliance on the following
judgments of the Hon'ble Apex Court as
well as this Court:-

(i)
Urvashi
Aggarwal
and
Others vs. Inderpaul Aggarwal; (2021)
SCC OnLine Del 4641.

(ii) Liaqat Hussain vs. Jainab
Parveen and Another; (2020) (12) ADJ
638 (DB).

7. Per contra, learned counsel for the
opposite party No.2 while opposing the
criminal revision has submitted that under
the provision of Section 19 of the Family
Court Act, 1984, the revision should have
been filed before the Division Bench of the
High Court. He also raised objection that
revisionists
could
have
obtained
the
aforesaid
relief
for
enhancement
of
monthly allowance from the trial Court,
therefore, the present revision for the
aforesaid relief is not maintainable and
same is liable to be dismissed. It has also
been submitted that revisionist No.1 is
doing job and earning monthly salary and
has filed income tax return. The opposite
party No.2 had filed copy of income tax
return since 2006 and credited of salary
into her accounts, but trial Court has not
taken into consideration to provide the
maintenance allowance to the revisionist
No.1 against the provisions of law.

8. It has been submitted by learned
counsel for the opposite party No.2 that
opposite party No.2 is ready to pay
4 All. Smt. Shaily Mittal & Ors. Vs. State of U.P. & Anr.
901
educational and living expenses of his
children provided it is directly paid into
their accounts and he has already incurred
expenses of Rs. 2,81,755/- towards Laptop,
coaching fee, tuition fee, admission fee and
other expenses of both the children and has
made payment of Rs.24,000/- to the
revisionist
No.1
towards
interim
maintenance. It has also been submitted
that revisionist No.1 is professionally
qualified and had been gainfully employed,
which is evident from the Bank statement
of revisionist No.1. Apart from this,
opposite
party
No.2
has
submitted
statement showing Rs.20,000/- as balance
and copy of NSC of Rs.20 lakhs in the
family
Court
proceedings,
therefore,
revisionist No.1 can maintain herself as
well as her children from the interest
accruing from the aforesaid accounts.

9. Learned counsel for the revisionist
and learned counsel for the opposite party
No.2 have been heard. Perused the
evidence available on the record of the
revision as well as the impugned order.

10. The opposite party No.2 has
raised objection that under the provision of
Section 19 of the Family Court Act, 1984
(hereinafter referred to as 'Act of 1984'),
the criminal revision is not maintainable
against the impugned judgment and order
passed by trial Court, the aggrieved person
can only file appeal in High Court and the
same be heard by Division Bench. The
provision regarding appeal is given in
Section 19 of the Act, which is as follows:-

 (1)Save as provided in subsection (2) and notwithstanding anything
contained in the Code of Civil Procedure,
1908 (5 of 1908) or in the Code of
Criminal Procedure, 1973 (2 of 1974) or
in any other law, an appeal shall lie from
every judgment or order, not being an
interlocutory order, of a Family Court to
the High Court both on facts and on law.

(2)No appeal shall lie from a
decree or order passed by the Family
Court with the consent of the parties or
from an order passed under Chapter IX of
the Code of Criminal Procedure, 1973 (2
of 1974):Provided that nothing in this
sub-section shall apply to any appeal
pending before a High Court or any order
passed under Chapter IX of the Code of
Criminal Procedure 1973 (2 of 1974)
before the commencement of the Family
Courts (Amendment) Act, 1991 (59 of
1991).

(3)Every
appeal
under
this
section shall be preferred within a period
of thirty days from the date of the
judgment or order of a Family Court.

(4)The High Court may, of its
own motion or otherwise, call for and
examine the record of any proceeding in
which the Family Court situate within its
jurisdiction
passed
an
order
under
Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974) for the
purpose of satisfying itself as to the
correctness, legality or propriety of the
order, not being an interlocutory order,
and, as to the regularity of such
proceeding.

(5)Except
as
aforesaid,
no
appeal or revision shall lie to any court
from any judgment, order or decree of a
Family Court.

(6)An appeal preferred under
sub-section (1) shall be heard by a Bench
consisting of two or more Judges.

11. Sub Section (1) of the Section
19 of the Act provides for appeal to High
Court against every judgment and order
passed by the Family Court. Sub Section
(6) of Section 19 of the Act also provides
902 INDIAN LAW REPORTS ALLAHABAD SERIES
that an appeal preferred under Sub
Section (1) of the Act shall be heard by a
Bench consisting of two or more judges.
Sub Section (2) of Section 19 of the Act
provides an explanation to sub Section
(1) of this Act. Accordingly, sub Section
(2) of Section 19 of the Act provides no
appeal shall lie from a decree and order
passed by the Family Court with the
consent of the parties or from an order
passed under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974).
The proceeding for maintenance under
section 125 Cr.P.C. is included in
Chapter IX of the Criminal Procedure
Code, 1973. Thus, the provisions of Sub
Section (1) of Section 19 of the Act
which provides that judgment and order
passed
by
Family
Court
shall
be
appealable to the High Court and heard
by Division Bench of that Court is not
applicable to the order passed by Family
Court in case filed under Section 125
Cr.P.C. Sub Section (4) of Section 19 of
the Family Courts Act, 1985 clearly
provides that criminal revision shall be
maintainable to the High Court against
order passed under Chapter IX of Cr.P.C.
i.e. Sections 125 to 128 Cr.P.C. Thus,
objection raised by the opposite party
No.2 in this regard has no merit and is
liable to be rejected.

12. Learned counsel for the opposite
party No.2 has also raised preliminary
objection to the jurisdiction of this Court
for enhacement of maintenance allowance
in view of the specific provision given in
Section 127 Cr.P.C.

13. 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.

14. 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
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.

15. 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 has jurisdiction to decide it.
Thus, plea of opposite party No.2 against
the jurisdiction of this Court viz-a-viz
Section 127 Cr.P.C. is misconceived and is
hereby rejected.

16. Admittedly, revisionist No.1 is the
wife of opposite party No.2 and revisionist
Nos.2 and 3 are their children, who are
aged about 8 and 9 years on the date of
filing of application under Section 125
4 All. Smt. Shaily Mittal & Ors. Vs. State of U.P. & Anr.
903
Cr.P.C.. Both are carrying on their
education and are residing with their
mother at her parental house since 2013.
From the pleadings/written statement of the
opposite party No.2, it is clear that during
this period, revisionist No.1 was residing
away from him. Opposite party no.2 has
provided
lump
sum
amount
of
Rs.2,81,755/- towards expenses of Laptop,
coaching fee, tuition fee, etc of revisionist
Nos.2 and 3. He also provided a sum of
Rs.24,000/- as interim maintenance to the
revisionist No.1. Thus, it transpires that for
more than 9 years revisionists are living
separately from the opposite party No.2.

17. Revisionist No.1 has pleaded, in
her application filed under Section 125
Cr.P.C., that though she is well educated
but she does not have any job and also has
no source of income for maintaining herself
as well as her children. She furtrher
pleaded that some amount was deposited in
her account i.e SBI and PNB, but passbook
and other documents relating to it has been
retained by the opposite party No.2,
therefore, she is not able to operate those
accounts. She further pleaded that opposite
party No.2 has 400 square yard area (plot),
which is situated in the main market of the
city. She also pleaded that her children are
studying in Muzaffarnagar and she has
taken rented accommodation of Rs.4000/-
per month near by her parental home where
she residing with her children. The
revisionist No.1 requires about 40,000/- per
month as maintenance allowance regarding
rent of accommodation, routine expenses,
medical expenses of herself and her
children including educational expenses of
her both children.

18. The opposite party No.2 has
pleaded, in his objection/written statement,
that he has no business or other source of
income, he is simply working as a salesman
in the business established by his elder
brother. He also admitted that his brother
has wholesale and retail business of Sarees
and merely he is getting salary of Rs.7000/-
as a salesman in the shop of his brother.

19. The revisionist No.1 has
deposed, in her cross-examination, that
although she has done MA and BEd and is
only house wife and she has denied that she
was working in S.D. Management College,
Muzaffarnagar before her marriage. She
also stated that earlier she used to reside in
House No.76 Gher Khatti, Muzaffarnagar
now she is residing in house No.75 in the
same Mohalla and the house rent of her
present accommodation is Rs.6000/- per
month. The revisionist No.1 has shown her
ignorance about income tax return and
NSCs of total value of Rs.18 lakhs in her
name. She has also expressed her ignorance
about her purchasing of 225 square yard
plot jointly with her husband. She has
deposed that documents, if any, relating to
her NSCs and plot of land is in the
possession of her husband.

20. The opposite party No.2 has
stated, in his cross-examination, that before
06.06.2013, he used to work in the shop of
Mittal Sons, which is owned by his real
brother, namely, Rajesh Kumar Mittal in
2013 and his salary was Rs.7000 to 8000/-
per month. In the said shop including him
there were four other employees and there
was no deduction from his salary for credit
in PPF accounts. The opposite party No.2
has admitted that he used to file income tax
return for the period of 2003 to 2013. He
also stated that he has filed income tax
return for the year 2020, but he has no
knowledge about income mentioned in it.
He also admitted that he has saving bank
account at PNB and PPF Account having
904 INDIAN LAW REPORTS ALLAHABAD SERIES
balance of Rs.45 lakhs. In the year 2006,
there was a balance of only Rs.2 to 3 lakhs
in his PPF account. He has admitted that
his parental house no.147 Naya Bazar
Shamli is double storied, one shop is
situated in ground floor and residential
house situated in first and second floor. He
also admitted, in his cross-examination,
that his wife is not doing regular job and
she is only taking tuition.

21. The opposite party No.2 deposed,
in his evidence, that there is a 225 square
yard plot in C.B. Gupta Colony in the joint
ownership of himself as well as his wife
and one half of the price of the plot was
paid from his account and remaining half
from the account of his wife. He further
admitted, in cross-examination, that entry
in his passbook (35 ka/18) shows deduction
of Rs.90,000/- which is transferred to his
five years R.D. He also admitted that on
18.01.2021, the amount of Rs.1,50,000/-
and 7,00,000/- has been withdrawn from
his account, but he could not explain for
which purpose that amount has been
withdrawn. He also admitted that on
19.01.2022, he had credited Rs.11 lakhs in
F.D. in his name. He also deposed, in his
cross-examination, that his daughter Km.
Iha has passed 12th and she is interested in
taking admission in Engineering course, he
is ready to give expenses for completing
engineering course of his daughter. He
further admitted that after his wife
separated from him, he has not made any
payment of maintenance allowance to her.
He further admitted that his family is a
reputed family of district Shamli.

22. Opposite party No.2, in his crossexamination, stated that in his marriage
with revisionist No.1, his parents have
given ornaments of about 20 tola gold and
father of the revisionist no.1 has also given
ornaments about 10-12 tola gold. Opposite
party No.2 has deposed that revisionist
No.1 has NSC and PPF Accounts, but she
has not given details of their value.

23. Admittedly, revisionist No.1 has
one half share to the plot owned by the
opposite party No.2, but from this plot, she
is not earning any running income which
she could utilise for maintenance of herself
and her children.

24. From appreciation of the above
mentioned oral evidence of revisionist No.1
and opposite party No.2, it transpires that
revisionist No.1 is a well educated women
but she is not doing any regular job and has
no income of her own.

25. 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."

26. From the deposition of
opposite party No.2, it transpires that he
belongs to a reputed business family of
Shamli District and his father and brother
are the proprietor of Raj Cutpiece Centre
and have a Saree shop. From his
deposition, it is also obvious that he is
continuously depositing money in his PPF
Account, F.D. and R.D.s and Saving Bank
4 All. Smt. Shaily Mittal & Ors. Vs. State of U.P. & Anr.
905
Account. The PPF account has been
increased from 20 lakhs to 45 lakhs and he
has also purchased plot of 240 square yard
in the city of the value of Rs.20 lakhs.
From the aforesaid discription of the
patental property as well as business
transctions of his shop relating to wholesale
business of cutpiece and Saree of his father
and brother respectively and regular
deposits and investment by him in various
accounts, it appears that he has a regular
income and his montly income is fairly
good.

27. From the above description, it is
not believable that he is simply working as
a salesman in his brother's shop and
earning Rs.7000/- to 8000/- per month.

28. The Court has to do some guess
work to determine the income of the
husband and wife. From the above
discussion, it can be safely concluded that
his monthly income is not less than
Rs.60,000/- per month. It is well settled law
that income of the husband or wife cannot
be
calculated
in
mathematical
terms
because actual income cannot be brought
on record as both the parties are interested
in concealing their incomes.

29. 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.

30. The 25% of net earning of the
husband should be granted as maintenance
allowance to the wife. The revisionist No.2
(daughter) of the opposite party No.2 is
doing engineering course and revisionist
No.3 (son) completed 12th and is preparing
for admission in professional course.

31. Under these circumstances, it will
be fair and just to provide 25 % of the gross
income of the opposite party No.2 to the
revisionist No.1 (wife) and 20 % of his
gross income as maintenance allowance to
the revisionist No.2 and 3.

32.

Considering
the
law
propounded by the following decisions and
facts and circumstances of the case, there is
sufficient ground to allow the present
criminal revision and enhance the amount
of maintenance allowance to be paid to the
revisionist Nos.1, 2 and 3.

33. In view of the aforesaid factual
and legal aspect, I am of the view that the
maintenance allowance granted by the
impugned order dated 25.01.2023 is unjust
and inadequate and should be modified and
enhanced. The maintenance allowance
granted by the impugned order is modified
accordingly.

34. It is provided that revisionist no.1
shall be entitled for Rs.15,000/- per month
as maintenance allowance. Revisionist
Nos.2 and 3 (daughter and son of the
opposite party No.2) each shall be paid
Rs.6,000/--6,000/-
per
month
as
maintenance allowance.

35. Thus, opposite party No.2 shall be
bound to provide maintenance allowance @
of Rs.15,000/- per month to his wife
(revisionist
No.1)
and
Rs.6,000/-
-
Rs.6,000/- to revisionist Nos.2 and 3 each
till they attain the age of majority. This
modified amount of maintenance allowance
shall be paid to the revisionists from the date
of application. The arrears of maintenance
allowance shall be paid in four equal
instalments at the gap of four months. The
monthly maintenance allowance shall be
paid regularly till 7th day of each month.
906 INDIAN LAW REPORTS ALLAHABAD SERIES

36. The present criminal revision is
partly
allowed
in
terms
of
above
mentioned conditions. The order impugned
dated 25.01.2023 is set aside in part and it
is modified according to the observation
made above.

37. The copy of the order be sent to
the trial Court concerned for necessary
compliance, forthwith.
----------
(2024) 4 ILRA 906
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 1762 of 2023

Rana Pratap Singh ...Revisionist
Versus
Neetu Singh & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri Ashok Kumar Shukla

Counsel for the Opp. Parties:
Sri Chandan Kumar Jaiswal

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 125(4) & 397 -
Hindu Marriage Act, 1955 - Section 9 -
Constitution of India,1950 - Articles 15(3),
39 - Criminal Revision - Rana Pratap Singh Vs
Neetu Singh & Ors., Criminal Revision No. 1762
of 2023 - Revisionist challenged order dated
01.03.2023
granting
maintenance
of
Rs.
15,000/- per month to wife and Rs. 5,000/-
each to two children under Section 125 Cr.P.C.,
alleging misappreciation of evidence and bar
under Section 125(4) due to wife's noncompliance with restitution of conjugal rights
decree. Court held: (1) Ex-parte decree under
Section 9 of Hindu Marriage Act, set aside by
Lok Adalat on 14.12.2019, was not in force,
negating the bar under Section 125(4) Cr.P.C.
(2) Allegations of wife's adultery or theft lacked
evidentiary support, as revisionist failed to
produce FIR, application, or WhatsApp message
screenshots, rendering claims unsubstantiated.
(3) Wife's lack of independent income, despite
B.Ed. qualification, and financial dependence on
parents justified maintenance; revisionist's claim
of her earning Rs. 40,000/- was unsupported
(Rajnesh Vs Neha, (2021) 2 SCC 324). (4)
Revisionist's gross salary of Rs. 65,773/- per
month (January 2023), as a CRPF constable,
was correctly considered without deductions for
non-statutory expenses like LIC premiums or
loan instalments (Dr. Kulbhushan Kumar Vs Smt.
Raj Kumari, (1970) 3 SCC 129). (5) Maintenance
of Rs. 25,000/- total (Rs. 15,000/- for wife, Rs.
5,000/- each for children) was just, considering
children's educational expenses (Rs. 37,700/-
and Rs. 35,800/- annually) and other costs
(Rajathi Vs C. Ganesan, (1999) 6 SCC 326).
Impugned
order
upheld;
no
illegality
or
jurisdictional error found. (Paras 12-27)

Criminal Revision Dismissed.

List of Cases cited:

1. Dr. Kulbhushan Kumar Vs Smt. Raj Kumari,
(1970) 3 SCC 129 (Para 20)

2. Rajathi Vs C. Ganesan, (1999) 6 SCC 326
(Para 23)

3. Rajnesh Vs Neha, (2021) 2 SCC 324 (Para 24)

4. Chander Parkash Bodh Raj Vs Shila Rani
Chander Prakash, 1968 SCC OnLine Del 52
(Para 25)

5. Amit Kumar Kachhap Vs Sangeeta Toppo,
Criminal Revision No. 512 of 2023 (Ranchi HC)
(Para 5)

6. Balaram Dash Vs Smt. Gitanjali Dash, 2000
Cri. L.J. 4175 (Para 5)

(Delivered by Hon'ble Surendra Singh - I, J.)

Heard Sri Ashok Kumar Shukla,
learned counsel for the revisionist and Sri
Chandan Kumar Jaiswal, learned counsel
for the opposite parties.