# Surendra Prajapati Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1321
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-07
- **Case number:** Criminal Revision No. 412 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-prajapati-revisionist-v-state-of-u-p-anr-50535
- **Pages:** 5

## Headnote

(A) Criminal Law - Revision - The Code of
Criminal Procedure, 1973 - Section 125 -
maintenance - amount of permanent
alimony awarded to the wife must be
befitting the status of the parties and the
capacity of the spouse to pay maintenance
- Maintenance is always dependent on the
factual situation of the case - court would
be justified in moulding the claim for
maintenance passed on various factors.
(Para -8)

Court awarded Rs. 4,000/- pm for maintenance
- to wife of revisionist - based on reasonable
cause - no evidence of an independent source
of earning of wife - finding of court below based
on record and factual evidence - wife of
revisionist residing separately from her husband
due to reasonable cause - divorce petition filed
by wife (respondent no. 4) against her husband
(revisionist)
-
cannot
be
considered
a
presumption of alleged separation without
sufficient cause.(Para -10)

HELD:- No significant legal or factual error in
the order passed . Due to revisionist's unproven
income as a white washer and painter, and his
responsibility to maintain himself and care for
family members, there is a need to reduce the
maintenance
liable
amount.
Court
placed
revisionist's reliance on daily-wage labor at Rs.
200/- to 250/- per day. Family court's judgment
modified from Rs. 4,000/- to Rs. 3,000/- per
month, with existing maintenance payments
adjusted accordingly. Respondent no. 2 can
apply for modified amount if they can prove
they earn more monthly through private work
than the revisionist's evidence. (Para -11,12)

Revision disposed of. (E-7)
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

8 All. Surendra Prajapati Vs. State of U.P. & Anr.
1321
and Others (2020) SCC, citing an earlier
decision in Sudhir Bhaskarrao Tambe v.
Hemant Yashwant Dhage and Others
(2010) SCC. The remedy for aggrieved
party is to approach the concerned
Magistrate U/s 156(3) CrPC, if they have
grievance with the police have not
registered the FIR U/s 154 of the CrPC and
envisages that if the police refused to
register the FIR and after registering the
FIR did not conduct the investigation
properly, the informant has a right to move
an application before the S.P.. when the
victim requested U/s 156(3) CrPC, they
must follow all the steps provided in
Section 154(1) and 154(2) of the CrPC.

15. From the above discussion, it is
evident that no cognizance offence is made
out on the basis of the contents disclosed in
application moved U/s 156(3) CrPC and
medical report. The contents regarding
SC/ST Act are to be read in the light of
substantive offence. The informant has
equally efficacious remedy to file a complaint
before the magistrate having jurisdiction to
try the case. The Supreme Court discussed
the above mentioned provisions of law in its
judgements very well. Hence, the order of the
trial
court
suffers
with
no
illegality,
irregularity or perversity. To file an appeal
without adopting due procedure is the misuse
of process of law.

16. In the light of the above
discussions, the appeal is hereby dismissed.
----------
(2023) 8 ILRA 1321
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.
Criminal Revision No. 412 of 2023

Surendra Prajapati ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Anil Kumar Prajapati

Counsel for the Respondents:
G.A.

(A) Criminal Law - Revision - The Code of
Criminal Procedure, 1973 - Section 125 -
maintenance - amount of permanent
alimony awarded to the wife must be
befitting the status of the parties and the
capacity of the spouse to pay maintenance
- Maintenance is always dependent on the
factual situation of the case - court would
be justified in moulding the claim for
maintenance passed on various factors.
(Para -8)

Court awarded Rs. 4,000/- pm for maintenance
- to wife of revisionist - based on reasonable
cause - no evidence of an independent source
of earning of wife - finding of court below based
on record and factual evidence - wife of
revisionist residing separately from her husband
due to reasonable cause - divorce petition filed
by wife (respondent no. 4) against her husband
(revisionist)
-
cannot
be
considered
a
presumption of alleged separation without
sufficient cause.(Para -10)

HELD:- No significant legal or factual error in
the order passed . Due to revisionist's unproven
income as a white washer and painter, and his
responsibility to maintain himself and care for
family members, there is a need to reduce the
maintenance
liable
amount.
Court
placed
revisionist's reliance on daily-wage labor at Rs.
200/- to 250/- per day. Family court's judgment
modified from Rs. 4,000/- to Rs. 3,000/- per
month, with existing maintenance payments
adjusted accordingly. Respondent no. 2 can
apply for modified amount if they can prove
they earn more monthly through private work
than the revisionist's evidence. (Para -11,12)

Revision disposed of. (E-7)
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

1. Bheekha Ram Vs Goma Devi & ors., 1999 Cri
LJ 1789

2. Kalyan Dev Chawdhury Vs Rita Dey
Chowdhury Nee Nandy , Civil Appeal No. 5369
of 2017

3. Dr. Kulbhushan Kumar Vs Raj Kumari & anr.,
(1970) 3 SCC 129

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. The present revision is directed
against the judgement and order dated
16.9.2022 passed by Principal Judge,
Family Court, Lalitpur in Misc. Case No.
10/2020 (Smt. Ramdevi @ Mohini vs.
Surendra Prajapati), under Section 125
Cr.P.C., P.S. Bar, District Lalitpur whereby
revisionist has been directed to pay Rs.
4,000/- per month as maintenance to his
wife- respondent no. 2 from the date of
judgement.

2. Notice has been served upon the
respondent no. 2 as per the report of the
C.J.M., concerned, but none appeared to
press this revision on behalf of the
respondent no. 2.

3. Heard learned counsel for the
revisionist and learned AGA for the State.

4. Brief facts of the case are that
respondent no. 2 filed an application for
maintenance against her husband under
Section 125 Cr.P.C. with averments that
her marriage with opposite party was
solemnized on 19.4.2014 according to
Hindu rites and rituals; her parents had
given cash and gifts as per their economic
status but her husband and in-laws were not
satisfied with the dowry given in her
marriage and started demanding of Rs. 02
lakhs as an additional dowry and on non
fulfillment they began practicing physical
and mental cruelty against her. Before
filing of petition u/s 125 Cr.P.C., she was
turned out from her matrimonial home by
her husband and in-laws with threatening
that if she came back without dowry she
will be turned out. On 1.1.2020 at 12:00
hours when the respondent no. 2- applicant
was in her parental home, her husband and
in-laws came to her place and stated that if
she could not fulfill their demand of dowry,
their marital relation would be dissolved
and when she declined to fulfill their
demand, they abused and gave beating to
her by kicks and fits and therefore, she
claimed for maintenance as the revisionist
is having two acre agricultural land and he
works as painter in big buildings on
contract from which he earns Rs. 50,000/-
per month.

5.

Learned
court
below
after
considering the pleadings of the parties and
evidence recorded in maintenance case,
gave finding that it is admitted fact that
applicant and opposite party are wife and
husband; applicant is residing at her
parental home for six years and in that
period she never came back to her
matrimonial home; divorce proceedings are
underway between the parties, therefore, it
is natural that probability of their re-union
is bleak and thus she has been left with no
other option but to live separately from her
husband, therefore it was held that
applicant was residing separately from
opposite party due to reasonable cause,
learned court below has also found that
according to version of opposite party, he
works as a labourer and earns Rs. 200-
250/- per day and therefore he has
sufficient income to maintain the applicant.
After recording these findings the court
below awarded Rs. 4,000/- per month as
8 All. Surendra Prajapati Vs. State of U.P. & Anr.
1323
maintenance from the date of judgement.
Feeling aggrieved by the said order the
present revision has been filed by the
revisionist- opposite party.

6. Learned counsel for the revisionist
submitted that the court below has acted in
illegal manner and committed irregularity
while passing the impugned order; there are
manifest error of law apparent on the face
of record in the judgement. On the basis of
material on record it is apparent that
respondent no. 2 has been residing
separately from the revisionist without any
reasonable cause and out of free will,
therefore, the revisionist is not obliged to
maintain her. He next submitted that
revisionist
is
a
person
of
meager
economic sources and he works as a
daily-wage labourer and earns a little
amount therefore he is not in a position to
pay Rs. 4,000/- per month as maintenance
to the respondent no. 2. He also maintains
his brother who remained sick for long
time as well as his parents by his own
meager wages and as the respondent no. 2
had also filed an application under the
Domestic Violence Act
against the
revisionist
which
was dismissed
in
default by the court concerned and in that
proceedings
revisionist
has
given
undertaking before the court to keep his
wife with him and court had also directed
the respondent no. 2 to accompany her
husband at her matrimonial home but she
did not comply with the order of the
court. Inasmuch as the respondent no. 2
had filed application before the family
conciliation centre wherein she stated that
she is willing to seek divorce from her
husband and she is not willing to reside
with him; the divorce petition has been
filed by the respondent no. 2 and not by
the revisionist himself, therefore, conduct
of the respondent no. 2 also shows that
she is not eligible to get any maintenance
in the proceedings u/s 125 Cr.P.C.

7.

Learned
counsel
for
the
revisionist
placed
reliance
on
the
judgement of Rajasthan High Court in
Bheekha Ram vs. Goma Devi and
others, 1999 Cri LJ 1789 wherein the
Court observed in para 8 and 9, which is
as under:-

8. The right to be maintained by the
husband stems from performance of
marital duty. It is only when the Court
inter alia comes to the finding that the
wife claiming maintenance had been
prevented from performing the marital
duty by the husband that she could be
awarded maintenance. When it is found
that the wife declines to live with
husband without any just cause and there
is no evidence of ill-treatment by the
husband,
wife
is
not
entitled
to
maintenance. In the instant case, it is
noticed that the husband even sent a
registered notice to the wife asking her to
stay with him but she refused to accept
the notice.

9. As already pointed out, in the
revisional jurisdiction, the Court cannot be
justified in reappraising the evidence and
come to its own conclusion when it is not
shown that the Magistrate had omitted to
consider some vital evidence or had
misread the evidence. The learned Addl.
Sessions Judge has, obviously exceeded his
jurisdiction in reversing the finding of fact
recorded by the Magistrate, without cogent
reasons. Goma Devi has not been able to
establish that she had been neglected by her
husband. As a matter of fact she is living
with her parents of her own accord. She is,
therefore, not entitled for maintenance
allowance for herself. However, she is
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to maintenance allowance for her
two kids who are living with her. Bheekha
Ram, has not come out with the case that
he was giving maintenance allowance to
Goma Devi for the children. It is no fault of
the children when they are living with their
mother. The father is bound to provide
maintenance to them.

8. Learned counsel for the revisionist
cited the judgement of Hon'ble Apex court
with regard to quantum of amount of
maintenance in Kalyan Dev Chawdhury
vs. Rita Dey Chowdhury Nee Nandy in
Civil Appeal No. 5369 of 2017 filed
against the judgement of High Court of
Culcutta on application under Section 25(2)
of Hindu Marriage Act whereby amount of
maintenance was reduced to Rs. 23,000/-
from Rs. 20,000/-. The Hon'ble Apex Court
has placed reliance on Dr. Kulbhushan
Kumar vs. Raj Kumari and another
(1970) 3 SCC 129 wherein it is held 25%
of the husband's net salary would be just
and proper to be awarded as maintenance to
the respondent wife. The amount of
permanent alimony awarded to the wife
must be befitting the status of the parties
and the capacity of the spouse to pay
maintenance.
Maintenance
is
always
dependent on the factual situation of the
case and the court would be justified in
moulding the claim for maintenance passed
on various factors.Cr.P.C.

9. Per contra, learned AGA submitted
that respondent no. 2 has stated in petition
u/s 125 Cr.P.C. that she was subjected to
cruelty by her husband and in-laws due to
non fulfillment of additional demand of
dowry and she was ultimately turned out
from her matrimonial home, therefore, she
has valid reason to leave her matrimonial
home and lives separately from her
husband. Learned AGA also submitted that
statement allegedly given by the respondent
no. 2 pertains to the year 2017 before the
family conciliation centre whereas in
divorce petition, petitioner has stated in
para-2 that she was turned out from her
matrimonial home in January, 2019 after
keeping her stridhan. She had declined the
alleged statement given before the family
conciliation centre in her evidence and said
statement is not duly proved.

10. In present case, amount of
maintenance awarded by learned court
below is Rs. 4,000/- per month for
maintenance to respondent no. 2, who is
wife of revisionist. The said amount is not
exorbitant or in any manner unreasonable;
there is no material or evidence on record
to the effect that respondent no. 2 is having
independent source of earning; finding of
the court below that applicant, who is
respondent no. 2 in present criminal
revision, is residing separately with her
husband due to reasonable cause; this
finding is based on material on record and
finding of fact which does not call for any
interference in present revision; this is
admitted fact that a divorce petition has
been filed by the respondent no. 2 against
the revisionist even the fact that divorce
petition is filed by the respondent no. 2-
applicant before the court below, cannot be
treated as presumption of alleged fact that
she was residing separately from her
husband without any sufficient cause.

11. Thus, I find no substantial legal or
factual error in the impugned order passed
by the learned family court in present case.
However, keeping in view the fact that
income of the revisionist has not been
specifically proved on record and this fact
has been brought on record that he works
as a white washer and painter of houses and
he is supposed to maintain himself and he
has to take care of family members; there is
8 All. Shailendra Yadav Lalai Vs. Ramesh & Ors.
1325
need that the amount of maintenance liable
to be reduced to some extent as is stated
that he earns around Rs. 200/- to 250/- per
day as a daily-wage labour and reliance is
placed thereby court below.

12. Consequently, the amount of
maintenance awarded in the impugned
judgement and order of family court is
modified from Rs. 4,000/- to Rs. 3,000/- per
month subject to same terms and conditions as
specified in the impugned order. Any amount
towards maintenance already paid, shall be
adjusted in accordance with modified amount
of
maintenance
in
present
judgement.
However, it is open to respondent no. 2 to file
an application for alteration of amount of
maintenance awarded by the court below,
which is modified by this order. If she finds
any material in support of the fact that he earns
more monthly amount through his private
work that what is stated by the revisionist
before court below in his evidence.

13. The present revision stands
disposed of with above observations.
----------
(2023) 8 ILRA 1325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Election Petition No. 3 of 2022

Shailendra Yadav Lalai ...Petitioner
Versus
Ramesh & Ors. ...Respondents

Counsel for the Petitioner:
In Person, Sri Saroj Kumar Yadav, Sri Shailendra
Yadav Lalai ( In Person), Sri Anil Sharma (Sr.
Advocate)

Counsel for the Respondents:
Sri Dhirendra Kumar Srivastava, Sri Akhilesh
Misra, Sri Amar Bahadur Singh, Sri Babu Lal
Ram, Sri Dharmendra Kumar Singh, Sri Kamlesh
Kumar Rajbhar, Sri Lalta Prasad, Sri Udayan
Nandan, Sri Shashi Nandan ( Sr. Adv.)

Civil Law- Code of Civil Procedure1908-Order
7
-
Rule
11
-The
Representation of the People Act, 1951Section
86(1)-
Material
facts
and
particulars have been pleaded in the election
petition challenging the election on the
ground of improper acceptance of the
nomination
paper
of
respondent
no.1
disclosing a cause of action and a triable
issue under Section 100 (1)(d)(i) of the R.P.
Act, 1951 that the election of respondent
no.1 is vitiated by improper acceptance of
nomination form. Hence, there is compliance
with Section 83(1)(a) & (b) of the R.P. Act,
1951, therefore, both the applications, i.e.,
Applications under Order 7 Rule 11 of C.P.C.
& Application under Section 86(1) of the
Representation
of
Peoples'
Act
are
dismissed.

Application dismissed. (E-15)

List of Cases cited:

1. Azhar Hussain Vs Rajiv Gandhi, AIR 1986 SC
1253

2. Anil Vasudev Salgaonkar Vs Naresh Kushali
Shigaonkar (2009) 9 SCC 310

3. Virendra Nath Gautam Vs Satpal Singh & ors.
AIR 2007 SC 581

4. Harkirat Singh Vs Amrinder Singh (2005) 13
SCC 511

5. Manani Lal Mandal Vs Bishnu Deo Bhandari
(2012) 3 SCC 314

6. Rajendra Kumar Meshram Vs Vanshmani
Prasad Verma & anr.(2016) 10 SCC 715

7. Kisan Shankar Katohore Vs Arun Dattatray
Sawant & ors. (2014) 14 SCC 162.

8. Resurgence India Vs Election Commission of
India & anr.(2014) 14 SCC 189