# Sweta Jaiswal Revisionist v. State of U.P. & Anr

- **Citation:** (2025) 9 ILRA 1306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-24
- **Case number:** Criminal Revision No. 3893 of 2017
- **Bench:** Rajiv Lochan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sweta-jaiswal-revisionist-v-state-of-u-p-anr-53877
- **Pages:** 6

## Headnote

G.A.

Issue for Consideration
Whether the refusal of maintenance to the
revisionist-wife
under
Section
125(4)
Cr.P.C. was sustainable when the Family
Court treated a voidable marriage under
Section 12(1)(c) of the Hindu Marriage
Act, 1955 as a bar to maintenance, despite
absence of any decree of nullity and
without establishing that the wife was
living separately without sufficient cause.

Headnotes
Code of Criminal Procedure, 1973 - s.125,
s.125(4)
-
Maintenance
-
Living
separately "without sufficient cause" -
Burden and findings - Perversity - Hindu
Marriage
Act,
1955
-
s.12(1)(c)
-
Voidable marriage - Effect in absence of
decree of nullity - Right to maintenance
- Remand- Revision allowed.

HELD:
9 All. Sweta Jaiswal Vs. State of U.P. & Anr.
1307
A voidable marriage under Section 12(1)(c) of
the Hindu Marriage Act, 1955 does not by itself
disentitle the wife from claiming maintenance
under Section 125 Cr.P.C. Unless and until the
marriage is annulled by a decree of nullity, the
marital status subsists and the statutory rights
flowing
therefrom
continue.
Denial
of
maintenance on a hypothetical premise that the
marriage
could
be
annulled
is
legally
impermissible. [Paras 9-12]

The Family Court committed patent illegality and
perversity in invoking Section 12(1)(c) HMA to
attract the bar under Section 125(4) Cr.P.C.
without any annulment proceedings or decree,
and by drawing inferences alien to the pleadings
and
evidence.
A
passing
reference
to
concealment of a previous marriage/divorce
could not, by itself, establish that the wife was
living separately without reasonable cause.
[Paras 7-10, 12-13]
Section 125 Cr.P.C. being a social justice
measure, denial of maintenance requires strict
proof of the statutory bar. Where the marriage
subsists, maintenance cannot be refused on
conjectural considerations. The impugned order
refusing maintenance to the wife was therefore
unsustainable. [Paras 10-13]

Order refusing maintenance to the wife set
aside; matter remanded to the Family Court to
decide afresh only the wife's claim in light of the
observations; maintenance awarded to the
minor daughter left undisturbed; time-bound
disposal directed. [Paras 13-16]

Revision allowed. (E-14)

Case Law Cited
Sukhdev Singh v. Sukhbir Kaur, 2025 SCC
OnLine SC 299 - relied on.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Hindu
Marriage Act, 1955

List of Keywords
Maintenance; Section 125 Cr.P.C.; Section
125(4) bar; Voidable marriage; Section 12(1)(c)
HMA; No decree of nullity; Living separately
without cause; Perversity; Remand; Social
justice.

Case Arising From
Order dated 02.11.2017 passed by the
Principal Judge, Family Court, Chandauli in
Maintenance Petition No. 332 of 2015
(Sweta Jaiswal and another v. Santosh Jaiswal)
under Section 125 Cr.P.C..

Appearance for Parties
For the Revisionist: Sri Bipin Kumar, Sri Mohd.
Naushad Siddiqui.
For the Respondent: Learned Government
Advocate.

## Text

1306 INDIAN LAW REPORTS ALLAHABAD SERIES
but the officials had applied their minds to
the effect that the accused under the
Gangster Act, 1986 was disturbing public
order and was gaining pecuniary and
temporal advantage. The Uttar Pradesh
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986 is an act which
makes the use of certain earlier cases in
which the accused is already being tried
and if the accused is to be now further tried
under the Gangster Act, 1986 then special
reasons have to be given after due
discussion in a joint meeting between the
police
officials
and
the
district
administration. The due discussion should
not be an empty formality. We also find
that the gang leader, Abbas Ansari, was
transferred to Kasganj Jail on 14.2.2023
and this aspect of the matter has also not
been considered in the due discussion.
Also, we find that in between the passing of
the judgment and order of the High Court
dated 15.5.2024 in Criminal Misc. Writ
Petition No. 2094 of 2024 and till the
lodging of the instant First Information
Report dated 31.8.2024, no new facts had
been brought on record to illustrate that the
petitioner was still functioning as a member
of any gang and that he was disturbing
public order and making any undue
temporal pecuniary material or other
advantage.

11. Thus for the reasons mentioned
above, the writ petition stands allowed. Also
the Application U/S 528 BNSS No. - 40591
of 2024 stands allowed and the Non-Bailable
Warrant stands quashed. The writ petitions
vis-a-vis the petitioners in Criminal Misc.
Writ Petition No. - 17602 of 2024 and in
Criminal Misc. Writ Petition No. - 18422 of
2024 are also accordingly, allowed.

12. The First Information Report
dated 31.8.2024 which had given rise to
Case Crime No. 556 of 2024, under
Sections 2/3 of Gangster Act, 1986 is
quashed. Also the gang-chart on the basis
of which the first information report was
lodged is quashed.
----------
(2025) 9 ILRA 1306
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2025

BEFORE

THE HON'BLE RAJIV LOCHAN SHUKLA, J.

Criminal Revision No. 3893 of 2017

Sweta Jaiswal ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Bipin Kumar, Sri Mohd. Naushad
Siddiqui

Counsel for the Opposite Parties:
G.A.

Issue for Consideration
Whether the refusal of maintenance to the
revisionist-wife
under
Section
125(4)
Cr.P.C. was sustainable when the Family
Court treated a voidable marriage under
Section 12(1)(c) of the Hindu Marriage
Act, 1955 as a bar to maintenance, despite
absence of any decree of nullity and
without establishing that the wife was
living separately without sufficient cause.

Headnotes
Code of Criminal Procedure, 1973 - s.125,
s.125(4)
-
Maintenance
-
Living
separately "without sufficient cause" -
Burden and findings - Perversity - Hindu
Marriage
Act,
1955
-
s.12(1)(c)
-
Voidable marriage - Effect in absence of
decree of nullity - Right to maintenance
- Remand- Revision allowed.

HELD:
9 All. Sweta Jaiswal Vs. State of U.P. & Anr.
1307
A voidable marriage under Section 12(1)(c) of
the Hindu Marriage Act, 1955 does not by itself
disentitle the wife from claiming maintenance
under Section 125 Cr.P.C. Unless and until the
marriage is annulled by a decree of nullity, the
marital status subsists and the statutory rights
flowing
therefrom
continue.
Denial
of
maintenance on a hypothetical premise that the
marriage
could
be
annulled
is
legally
impermissible. [Paras 9-12]

The Family Court committed patent illegality and
perversity in invoking Section 12(1)(c) HMA to
attract the bar under Section 125(4) Cr.P.C.
without any annulment proceedings or decree,
and by drawing inferences alien to the pleadings
and
evidence.
A
passing
reference
to
concealment of a previous marriage/divorce
could not, by itself, establish that the wife was
living separately without reasonable cause.
[Paras 7-10, 12-13]
Section 125 Cr.P.C. being a social justice
measure, denial of maintenance requires strict
proof of the statutory bar. Where the marriage
subsists, maintenance cannot be refused on
conjectural considerations. The impugned order
refusing maintenance to the wife was therefore
unsustainable. [Paras 10-13]

Order refusing maintenance to the wife set
aside; matter remanded to the Family Court to
decide afresh only the wife's claim in light of the
observations; maintenance awarded to the
minor daughter left undisturbed; time-bound
disposal directed. [Paras 13-16]

Revision allowed. (E-14)

Case Law Cited
Sukhdev Singh v. Sukhbir Kaur, 2025 SCC
OnLine SC 299 - relied on.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Hindu
Marriage Act, 1955

List of Keywords
Maintenance; Section 125 Cr.P.C.; Section
125(4) bar; Voidable marriage; Section 12(1)(c)
HMA; No decree of nullity; Living separately
without cause; Perversity; Remand; Social
justice.

Case Arising From
Order dated 02.11.2017 passed by the
Principal Judge, Family Court, Chandauli in
Maintenance Petition No. 332 of 2015
(Sweta Jaiswal and another v. Santosh Jaiswal)
under Section 125 Cr.P.C..

Appearance for Parties
For the Revisionist: Sri Bipin Kumar, Sri Mohd.
Naushad Siddiqui.
For the Respondent: Learned Government
Advocate.

(Delivered by Hon'ble Rajiv Lochan
Shukla, J.)

1. Heard Learned counsel for the
revisionist, learned A.G.A. for the Staterespondents and perused the material
brought on the record.

2. The present criminal revision
has been preferred against the impugned
order dated 2.11.2017 passed by the
Principal Judge, Family Court, Chandauli
in Maintenance Petition No.332 of 2015
(Sweta Jaiswal and another Vs. Santosh
Jaiswal)
under
Section
125 Cr.P.C.,
whereby the claim for maintenance by the
revisionist Sweta Jaiswal has been refused.
However, the claim for maintenance for her
minor daughter has been allowed to the
tune of Rs. 2,000/- per month.

3. From the perusal of the records,
it transpires that the notices were issued by
this Court, which were duly served upon
the opposite party No.2 on 25.1.2018, now
even thereafter despite passing of several
peremptory orders, no one has put in
appearance on behalf of the opposite party
No.2. Lastly, on 21.05.2025, the Court was
constrained to pass the following order:-

 "1. List revised. None responded
for the opposite party no. 2 to press this
revision.
1308 INDIAN LAW REPORTS ALLAHABAD SERIES
 2. At the request of learned
A.G.A. for the State, case is adjourned for
the day.

 3. Matter pertains to the year
2017.

 4. List on 08.07.2025 for final
hearing.

 5. It is made clear that no further
adjournment will be granted to the opposite
parties."

4.
Learned
counsel
for
the
revisionist has apprised the Court of the
previous order dated 4.7.2022, wherein,
this Court had passed an order for
peremptory listing of the case. The
aforesaid
order
dated
4.7.2022
is
reproduced hereinunder:-

 "Record of the case indicates
that as per the report of the CJM,
Bhadohi, Gyanpur dated 25.01.2018
notices were duly served upon opposite
party no.2 but neither he has engaged
any counsel nor any counter affidavit has
been filed so far.

 This revision is being filed on
behalf of Sweta Jaiswal wife of Santosh
Jaiswal, opposite party no.2, who claims
for maintenance which was rejected in the
light of provisions under Section 125(4)
Cr.P.C.

 Let written information may be
given to Santosh Jaiswal son of Ramraj
Jaiswal at the address given in memo of
revision itself connecting the opposite party
no.2 that the matter would be heard and
decided ultimately on 1st August 2022 with
or without appearance of opposite party
no.2.
 A last opportunity is afforded to
him to put his appearance through counsel
to contest the present criminal revision.

 List this matter peremptorily on
01.08.2022."

5.
Learned
counsel
for
the
revisionist then contends that perusal of the
order-sheet and the orders quoted above
would indicate that opposite party No.2
despite service of notice is not interested to
contest the case and has neither engaged
any counsel nor has filed any counter
affidavit to the claims raised in the criminal
revision and the affidavit accompanying
thereto.

6.
Learned
counsel
for
the
revisionist has argued that the sole ground,
refusing grant of maintenance to the
revisionist, as is reflected from the
impugned order, is the provisions contained
in Section 125(4) of the Code of Criminal
Procedure, whereby, the learned Principal
Judge while going through the statements
of the P.W.-1(revisionist) and the opposite
party No.2 has opined that the reason for
the revisionist not staying with the opposite
party No.2 on account of the fact that he
had concealed the factum of his previous
marriage and divorce. Learned counsel for
the revisionist further argued that this
finding recorded by the learned Principal
Judge is absolutely perverse and no such
finding could have been recorded from the
statement of the revisionist from the
pleadings that have been filed.

7. This Court has had an occasion
to go through the application under Section
125 Cr.P.C. moved on behalf of the
revisionist and also her statement recorded
before the Competent Court, which has
been annexed as Annexure Nos.1 & 2 to
9 All. Sweta Jaiswal Vs. State of U.P. & Anr.
1309
the affidavit accompanying the criminal
revision. Perusal of the same indicates that
the revisionist has leveled allegations of
cruelty in respect to demand of dowry and
a passing reference has been made in her
statement and her pleadings highlighting
the factum of previous marriage and
divorce of the opposite party No.2 which
has been concealed from her. The learned
Court below taking this passing remark has
recorded a finding that the revisionist was
living separately from her husband without
reasonable cause whereas the stand taken
by the opposite party No.2 was that the
revisionist's behavior was too atrocious and
that she used to behave in a cruel manner
with the family members of the opposite
party No.2

8. The Principal Judge, Family
Court arriving at the conclusion, on the
basis of the evidence led by the parties,
cannot draw an inference, which is alien to
the contentions of the parties. A mere
passing reference to the previous marriage
and divorce being concealed from the
revisionist could not lead to any conclusion
that the revisionist was willfully avoiding
her duties as a wife and was living
separately from her husband without
reasonable cause.

9. While recording the findings as
to Section 125(4) Cr.P.C., the learned
Principal Judge has also referred to Section
12 of The Hindu Marriage Act, 1955
(hereinafter referred to as the "Act, 1955"),
specifically the Section 12(1)(c) of the Act,
1955
which
provides
for
voidable
marriages and has recorded that if a
marriage has been effected by concealment
of material fact or that the consent for
marriage has been obtained by playing
fraud, then a party can seek the marriage to
be declared as a nullity and has further
recorded that in such circumstances, where
the marriage may be annulled, the wife
would not be entitled for any maintenance.
Section 12(1)(c) of the Act, 1955 is being
reproduced hereinbelow:-

 12. Voidable marriages. - (1) Any
marriage solemnised, whether before or
after the commencement of this Act, shall
be voidable and may be annulled by a
decree of nullity on any of the following
grounds, namely:-
 (a) ........

 (b) .......

 (c) that the consent of the
petitioner, or where the consent of the
consent of the guardian in marriage of the
petitioner [was required under section 5 as
it
stood
immediately
before
the
commencement of the Child Marriage
Restraint (Amendment) Act, 1978 (2 of
1978)*], the consent of such guardian was
obtained by force [or by fraud as to the
nature of ceremony or as to any material
fact or circumstance
concerning the
respondent]; or

 (d) ......."

10. Even though consideration of
Section 12(1)(c) of the Act, 1955 is not
required to be gone into at this stage, as no
such exercise has been undertaken by the
revisionist
for
getting
the
marriage
annulled. However, at the same time, it is
necessary to comment upon the error
committed by the learned Principal Judge
in recording that merely because a marriage
could be annulled, the wife loses her right
to claim maintenance. Unless and until, a
marriage, which is voidable, has been
declared a nullity by a decree, the status of
the revisionist as the legally wedded wife
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
of the opposite party No.2 persists and all
the rights that flow from the same
continuous. Merely on a hypothetical
consideration that the said marriage could
be annulled as there was a concealment of
the previous marriage or divorce from the
side of the respondent No.2 which may or
may not be considered to be in violation of
Section 12(1)(c) of the Act, 1955, however,
once there was no decree of nullity nor
there being any evidence that such a decree
has been sought by the revisionist against
the respondent No.2, no finding on Section
125(4) Cr.P.C. could be recorded. Relying
upon the above-mentioned provision and
declaring that the wife loses her right to
claim maintenance is perverse and patently
illegal being misdirected and uncalled for.

11. The Hon'ble Supreme Court in
the case of Sukhdev Singh Vs. Sukhbir
Kaur reported in 2025 SCC OnLine SC
299, while answering questions referred
has held as follows:-

 26. Even if, prima facie, the
matrimonial court finds the marriage
between the parties is void or voidable, the
court is not precluded from granting
maintenance pendente lite provided the
conditions mentioned above are satisfied.
The grant of relief under Section 24 is
discretionary as the Section uses the word
?may?. While deciding the prayer for
interim relief under Section 24, the Court
will always consider the conduct of the
party seeking the relief. It provides for
issuing a direction to pay a reasonable
amount.

 28. Accordingly, we answer the
questions as follows:

 a. A spouse whose marriage has
been declared void under Section 11 of the
1955 Act is entitled to seek permanent
alimony or maintenance from the other
spouse by invoking Section 25 of the 1955
Act. Whether such a relief of permanent
alimony can be granted or not always
depends on the facts of each case and the
conduct of the parties. The grant of relief
under Section 25 is always discretionary;
and

 b. Even if a court comes to a
prima facie conclusion that the marriage
between the parties is void or voidable,
pending
the
final
disposal
of
the
proceeding under the 1955 Act, the court is
not precluded from granting maintenance
pendente lite provided the conditions
mentioned in Section 24 are satisfied.
While deciding the prayer for interim relief
under Section 24, the Court will always
take into consideration the conduct of the
party seeking the relief, as the grant of
relief
under
Section
24
is
always
discretionary."

12. Once the provision which the
learned Principal Judge refers to under the
Act, 1955 itself does not dis-entitle the
claim for maintenance then the relief under
the general provision under Section 125
Cr.P.C. cannot be denied solely on the
consideration
that
marriage
would
be
voidable. Here, no proceedings have been
been drawn to the notice of the Court where
either of the parties had sought a decree for
declaration of the marriage as a nullity as
such, once marriage persists, the status of the
revisionist as the legally wedded wife of the
opposite party No.2 continues and not subject
to challenge. The marriage itself has not been
declared a nullity and in the absence of the
same, denial of relief of maintenance on the
incorrect assumption of the applicability of
Section 12(1)(c) of the Act, 1955 was clearly
illegal and perverse.
9 All. Vivek Singhal Vs. Smt. Vijaya Rani Singhal
1311
13. In these circumstances, the
finding recorded by the learned trial Court
that the revisionist was dis-entitled for the
maintenance as she was covered by the bar
to grant of maintenance under 125(4)
Cr.P.C. is patently illegal and perverse and
is liable to be set aside. Consequently, the
matter is remanded back to the learned
Principal Judge, Family Court, Chandauli
for passing a fresh order in the light of the
observations made herein before only with
respect to the claim of the maintenance of
the revisionist without disturbing the
maintenance,
awarded
to
the
minor
daughter.

14. Let a copy of this order be
communicated to the learned Principal
Judge, Family Court, Chandauli and the
learned counsel for the revisionist may also
file a copy of this order before him within a
period of one month from today.

15.
Learned
Principal
Judge,
Family Court, Chandauli shall on receipt of
this order and after due notice to the
parties, proceed to decide the case within a
further period of three months. 16. With the
above directions, the instant criminal
revision stands allowed.
----------
(2025) 9 ILRA 1311
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

First Appeal From Order No. 279 of 2011

Vivek Singhal ...Appellant
Versus
Smt. Vijaya Rani Singhal ...Respondent

Counsel for the Appellant:
K.M. Garg

Counsel for the Respondent:
Manoj Kumar Tiwari

ISSUE FOR CONSIDERATION
Whether the probate petition filed by the
appellant for the Will is maintainable under
Section 57(c) of the Indian Succession Act,
1925, and whether the Additional District Judge
erred
in
rejecting
the
petition
as
nonmaintainable.

HEADNOTES
Civil Law - Indian Succession Act, 1925 -
Section 57, 57(a), 57(b), 57(c), 213 (2) -
First Appeal from Order - challenging the
rejection of probate case - and for remanded
back the matter before court below to decide
the probate case afresh - Will - executed in
favour of the Appellant regarding property in
Rajasthan - appellant sought probate of Will
field Probate Case - respondent filed no
objection - The Additional District Judge,
dismissed the probate case, holding that the Will
fell under Section 57(c) of the Act, 1925 and
thus probate could not be granted - hence the
instant
Appeal
-
appellant
arguing
misinterpretation of Section 57 and relying on
several precedents to show that probate should
not be refused when the Will is duly proved,
especially as Section 213(2) permits Hindus to
establish rights under a Will without probate -
the core issue as whether the lower court erred
in denying probate despite the Will being validly
executed and uncontested - the Court, after
considering arguments and precedents, held
that the Will was valid and that the Additional
District Judge erred in rejecting the probate
petition on the basis of Section 57 of the Indian
Succession Act, 1925 - Referring to rulings in
Triloki Nath, Kanta Yadav, and Clarence Pais, it
was clarified that probate petitions for Wills
under Section 57(c) are maintainable and
optional, and cannot be dismissed as nonmaintainable - hence, the impugned order is set
aside, Probate Case is restored to its original
number, and the lower court is directed to
decide the matter on its merits expeditiously -
First Appeal From Order is accordingly, allowed.
(Para - 14, 15, 16)
Appeal allowed. (E-11)