# Smt. Sitara Devi Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-04
- **Case number:** Criminal Revision No. 510 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sitara-devi-revisionist-v-state-of-u-p-anr-47271
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 -Revision -
order for maintenance of wives, children
and parents - maintenance is to be
awarded from the date of application
made to the Family Court, bearing in mind
the total in-hand monthly salary received
by the husband on the one hand and his
liabilities towards other dependent family
members on the other. (Para - 13)

Revisionist's moved application before Principal
Judge, Family Court for maintenance - partly
allowed - directing the second opposite party to
pay the revisionist maintenance in the sum of
Rs.7000/- per month from the date of order -
revisionist
seeks
enhancement
of
the
maintenance awarded, payable from the date of
application - Hence criminal revision.

HELD:- The impugned judgment and order
passed by the Principal Judge, Family Court, is
modified to the extent that the revisionist is held
entitled to receive in maintenance a sum of
Rs.9000/- per month, payable by the second
opposite
party
from
the
date
of
application.(Para - 14)

Criminal Revision allowed. (E-6)

List of Cases cited:-

## Text

8 All. Smt. Sitara Devi Vs. State of U.P. & Anr.
545
notice was duly served upon the applicantrespondent No.2. There is no compulsion
that notice be served upon the male family
member of party. Service of notice is duly
effected
upon
a
family member
of
applicant-respondent No.2. It is nowhere
disputed that notice is duly served upon the
Bhanja of applicant-respondent No.2. It is
nowhere
disputed
by
the
applicantrespondent No.2 that he was informed on
phone with regard to notice of the present
proceedings.
Further,
the
applicantrespondent No.2 has also nowhere stated
that he never lived on the address on which
the notice was sent. The only repeated
statement,
made
by
the
applicantrespondent No.2 in the affidavit and even
in the Court is, that, he is not residing on
the said address.

10. Looking into the entirety of above
noted facts and circumstances of the case
and also the long drawn litigation, as
admitted by the applicant-respondent No.2
himself in his affidavit in support of recall
application, this Court does not believe the
conduct of the applicant-respondent No.2
to be bona fide in not appearing in the case
and stating that the notice was not served
upon him. The applicant-respondent No.2
cannot be permitted to unnecessarily
prolong the proceedings, pending before
this Court. It is the duty of parties to fully
cooperate in the early disposal of case. No
party having knowledge of the case can
force the Court to first pass an ex parte
order and then claim right to recall the
same even when its bona fide is not proved.
The present case falls in such a category.
The
applicant-respondent
No.2
had
knowledge of the pendency of the present
case and when ex parte order was passed,
he claims his right to recall the order on
ground of non-appearance, which in the
given facts cannot be said to be bona fide.
In view of the aforesaid, the application for
recall deserves to be rejected with costs.

11. The application for recall is
rejected with costs which is quantified to
Rs.1000/-. The costs shall be deposited in
Registry by the applicant-respondent No.2
within three weeks from today.

(Crl. Misc. Application No.37728 of
2021: Application for Correction in the
Order dated 4.1.2021)

This application is filed on behalf of
the petitioner. The correction sought for,
are clerical in nature.

The application is allowed. The order
dated 4.1.2021 is corrected in the following
manner:-

(1) In para 6 line 5 of the order, the
word "petitioner" is replaced with word
"opposite party No.2".

(2) In para 7 line 8 of the order, the
word, "daughter" is replaced with word
"son".
----------

(2021)08ILR A545
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 510 of 2020

Smt. Sitara Devi ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Kanchan Chaudhary, Sri C.L. Chaudhary
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:
A.G.A., Sri Hakim Kumar Kushwaha, Sri
Rajesh Kumar Srivastava

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 -Revision -
order for maintenance of wives, children
and parents - maintenance is to be
awarded from the date of application
made to the Family Court, bearing in mind
the total in-hand monthly salary received
by the husband on the one hand and his
liabilities towards other dependent family
members on the other. (Para - 13)

Revisionist's moved application before Principal
Judge, Family Court for maintenance - partly
allowed - directing the second opposite party to
pay the revisionist maintenance in the sum of
Rs.7000/- per month from the date of order -
revisionist
seeks
enhancement
of
the
maintenance awarded, payable from the date of
application - Hence criminal revision.

HELD:- The impugned judgment and order
passed by the Principal Judge, Family Court, is
modified to the extent that the revisionist is held
entitled to receive in maintenance a sum of
Rs.9000/- per month, payable by the second
opposite
party
from
the
date
of
application.(Para - 14)

Criminal Revision allowed. (E-6)

List of Cases cited:-

1. Rajnesh Vs Neha & anr., (2021) 2 SCC 324

(Delivered by Hon'ble J.J. Munir, J.)

1. This criminal revision is directed
against an order of Mr. Dinesh Tiwari,
Principal Judge, Family Court, Kaushambi
dated 19.10.2019, partly allowing the
revisionist's application for maintenance
under Section 125 Cr.P.C. and directing the
second opposite party to pay the revisionist
maintenance in the sum of Rs.7000/- per
month from the date of order. The
revisionist seeks enhancement of the
maintenance awarded, payable from the
date of application.

2. Heard Mr. C.L. Chaudhary, learned
Counsel for the revisionist and Mr. Hakim
Kumar
Kushwaha,
learned
Counsel
appearing on behalf of opposite party No.2.

3. The revisionist, Smt. Sitara Devi
and the second opposite party, Kamlesh
Kumar, are an estranged couple. The
parties were married, according to Hindu
rites, on 17th April, 2009. There are
allegations by the wife that she was
subjected to cruelty, both mental and
physical, in connection with demand of
dowry. The details of those facts, that have
been wholesomely set out in the Family
Court's
judgment,
need
not
be
recapitulated. The reason is that the Family
Court, on the basis of evidence on record,
has recorded a finding of fact that the wife
is living apart from the husband for
sufficient cause. It is the wife who has
come up in revision, assailing the judgment
and order passed by the Family Court, to
the extent it denies the wife's claim to a
maintenance in the sum of Rs. 15,000/- per
month, from the date of application. The
husband-opposite party no.2 has not
challenged the order.

4. The learned Counsel for the
revisionist-wife
submits
that
the
maintenance awarded is way below than
that necessary to maintain the standard of
living the wife has been accustomed to in
her matrimonial home. Learned Counsel
for the revisionist submitted, during the
course of hearing, that the husband is
employed as a Class-IV employee at the
Indian Air Force Station, Bamhrauli,
Prayagraj and earns a salary of Rs.50,000/-
per month. The wife is not professionally
trained or otherwise able to earn anything
8 All. Smt. Sitara Devi Vs. State of U.P. & Anr.
547
for herself. She is entirely dependent for
her sustenance on her husband. There is
also a case about the second opposite party
being possessed of ancestral agricultural
land, which yields a handsome income. His
total monthly earnings from the salary and
land put together is claimed to be a sum of
Rs. 90,000/-.

5. It is further argued by Mr.
Chaudhary, learned Counsel appearing for
the revisionist that maintenance, apart from
being grossly inadequate, judged on the
standard parameters, is also awarded in
error from the date of order, instead of the
date of application.

6. The claim about the agricultural
land has been denied by the husband in
paragraph no.11 of the counter affidavit,
that he has filed in opposition to the
affidavit filed in support of the revision. It
has also been asserted in paragraph no.9 of
the counter affidavit that the second
opposite party's income, evident from his
payslip for the month of February, 2020, is
Rs. 24,931/- per month and not Rs.
50,000/- as alleged.

7. This Court has keenly considered
the submissions advanced by the learned
Counsel for parties and perused the record,
which has been summoned from the Family
Court.

8. The Family Court, while awarding
maintenance, has proceeded entirely on the
basis of parole evidence of the husband,
that he receives a monthly salary of
Rs.22,000/-. The Family Court has not
called upon or required the husband to
produce documentary evidence about his
monthly emoluments, which is easy to
require
production
of,
and
would
clinchingly show the husband's monthly
income at least from his Government
employment. Before the Family Court or
this Court, the wife has not produced any
evidence to show that the husband has
inherited any kind of agricultural land, that
yields him periodical income, in addition to
what he earns in salary, received from the
Indian Air Force. The husband/second
opposite party has placed before the Court,
through his counter affidavit, a photostat
copy of his payslip for the month of
February, 2020, as an annexure. The
payslip shows a monthly gross salary of
Rs.41,075/-
and
gross
deduction
of
Rs.16,144/-, with a net pay of Rs. 24,931/-.
The payslip further indicates the breakup of
the gross deduction. It shows provident
fund subscription to the tune of Rs.15,000/-
per month, besides contribution to the
Central Government Employees Group
Insurance Scheme (CGEGIS) in the sum of
Rs.9/- per month. It also shows deduction
towards CGEGIS Saving in the sum of
Rs.21/- per month and a sum of Rs.250/-
per month deducted towards Central
Government
Health
Scheme
(CGHS).
There is then a miscellaneous monthly
deduction of Rs.864/-, the nature whereof
is not clear from the payslip. It is the
aggregate of these various deductions that
go to make a gross of Rs.16,144/-.

9. To the understanding of this Court,
the trivial and small sums of money
deducted
might
be
statutory
and
compulsory,
but
the
provident
fund
subscription of Rs.15,000/- per month is a
handsome elective. The statutory deduction
of provident fund ex facie from a basic pay
of Rs.29,300/- cannot be a figure of
Rs.15,000/-.

10. During the hearing, this Court
required Mr. Kushwaha to indicate the
current emoluments of the second opposite
548 INDIAN LAW REPORTS ALLAHABAD SERIES
party,
including
deductions.
He
has
submitted to the Court a figure of
Rs.42,272/- received in gross salary. The
deduction of Rs.15,000/- towards provident
fund, Rs.30/- towards Insurance, Rs.250/-
towards CGHS, Rs.4832/- towards house
rent and an LIC premium of Rs.3013/- per
month has been verified. He has placed
before
Court
an
in-hand
salary
of
Rs.23,125/- per month. Again, ex facie, the
said figures cannot be accepted. The lavish
contribution towards provident fund and
the LIC premium cannot reckon towards
compulsory deductions or not counted
towards the second opposite party's income
at all. Going by a rough and ready estimate,
the second opposite party would have an
easy in-hand salary of Rs.35,000/- per
month.

11. In the opinion of this Court, the
Family Court, therefore, has erred in
proceeding
to
determine
the
second
opposite party's income at a figure of
Rs.22,000/- per month for his mere saying.
Mr. Kushwaha has drawn the Court's
attention to the fact that the second
opposite
party
has
to
shoulder
the
responsibilities of his aged father, who is
said to be aged 66 years and dependent on
him, besides an unmarried sister. It was
said about his unmarried sister that her
marriage is scheduled on 26.04.2021. It is
not known if that marriage has fructified. It
is true that so far as the second opposite
party's father is concerned, if he is unable
to maintain himself, the second opposite
party would have obligation under the law
to maintain him. He would, on moral
parameters, have to support his sister, until
she is married or starts earning for herself.
Thus, in working out the entitlement of the
wife, the lawful liabilities of her husband
towards other dependent family members
have to be borne in mind vis-a-vis his
monthly income. At the same time, it has to
be ensured that the wife receives a
maintenance a sum that is sufficient to
maintain herself by the same standard that
she
would
enjoy
in
her
husband's
household.

12. In Rajnesh v. Neha and another,
(2021) 2 SCC 324, their Lordships of the
Supreme Court have laid down the criteria
for
determining
the
quantum
of
maintenance. It has been said in Rajnesh
thus:

III. Criteria for determining
quantum of maintenance

77. The objective of granting
interim/permanent alimony is to ensure that
the dependent 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.

78. The factors which would
weigh with the court inter alia are the status
of the parties; reasonable needs of the wife
and dependent 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
8 All. Smt. Sitara Devi Vs. State of U.P. & Anr.
549
v. District Judge, Dehradun, (1997) 7 SCC
7; Refer to Vinny Parmvir Parmar v.
Parmvir Parmar, (2011) 13 SCC 112 :
(2012) 3 SCC (Civ) 290]

79. In Manish Jain v. Akanksha
Jain [Manish Jain v. Akanksha Jain, (2017)
15 SCC 801 : (2018) 2 SCC (Civ) 712] 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 dependent upon factual
situations; the court should mould the claim
for maintenance based on various factors
brought before it.

80. On the other hand, the financial
capacity of the husband, his actual income,
reasonable expenses for his own maintenance,
and dependent 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 : (2018) 5 SCC
(Civ) 596 : (2019) 4 SCC (Cri) 339]

81. 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 : (2008) 1 SCC (Civ)
547 : (2008) 1 SCC (Cri) 356] 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.

84. The Delhi High Court in Bharat
Hegde v. Saroj Hegde [Bharat Hegde v. Saroj
Hegde, 2007 SCC OnLine Del 622 : (2007)
140 DLT 16] laid down the following factors
to be considered for determining maintenance
: (SCC OnLine Del para 8)

"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.
550 INDIAN LAW REPORTS ALLAHABAD SERIES

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

8. Payment capacity of the nonapplicant.

9. Some guesswork is not ruled
out while estimating the income of the nonapplicant when all the sources or correct
sources are not disclosed.

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

11. The amount awarded under
Section 125 CrPC is adjustable against the
amount awarded under Section 24 of the
Act.

13. In Rajnesh, it has been held that
maintenance is to be awarded from the date
of application made to the Family Court,
bearing in mind the total in-hand monthly
salary received by the husband on the one
hand and his liabilities towards other
dependent family members on the other.
Going by the entitlement of the wife to
maintain herself by the same standard of
living that she would have enjoyed in her
husband's household, it would meet the
ends of justice to enhance the maintenance
awarded from a sum of Rs.7000/- to
Rs.9000/- per month, payable from the date
of application.

14. In the result, this revision,
succeeds and is allowed in part. The
impugned judgment and order passed by
the
Principal
Judge,
Family
Court,
Kaushambi is modified to the extent that
the revisionist is held entitled to receive in
maintenance a sum of Rs.9000/- per month,
payable by the second opposite party from
the date of application.

15. Let this order be communicated to
the
Principal
Judge,
Family
Court,
Kaushambi by the Registrar (Compliance).

16. Let the lower court records be sent
down at once.
----------
(2021)08ILR A550
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 756 of 2020

Rajan @ Raja Ram & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Nirbhay Singh, Sri A.K.S. Bais

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 326/34 , 504 & 506 - The
Code of Criminal Procedure, 1973 -
Section 374 - Appeals from convictions -
Duties of the Appellate Court - In an
appeal from a judgment of conviction, the
Appellate Court is required not only to
review,
but
re-appreciate
the
entire
evidence on record afresh, and determine
for itself, whether the prosecution have
succeeded in establishing the charge
against the appellant beyond reasonable
doubt - Contrary to what the Appellate
Court has said - if two views of the
evidence
are
possible,
certainly
the
Appellate Court is duty bound to take the
view that favours the accused. (Para - 6 )

It is a case, where the two revisionists have
been tried and convicted by the Magistrate -
offence punishable under Section 326 read with
Section 34 IPC - acquitted by the Magistrate of