The Allahabad High Court while dismissing the petition said that the Court can consider the present income of the husband and wife for determining maintenance payable to the wife and children.
A Single Bench of Justice Surendra Singh-I passed this order while hearing a petition filed by Rana Pratap Singh.
By means of the criminal revision, the revisionist has assailed the order dated 01.03.2023 passed by the Principal Judge, Family Court, Gorakhpur in Criminal Case filed under Section 125 CrPC.
By the impugned order, the trial court has allowed the criminal case instituted by the opposite party no1 under Section 125 Cr.P.C and granted maintenance allowance of Rs 15,000/- per month to the opposite party no 1 (wife) and Rs 5000/- each to her children from the date of filing of the criminal case. The opposite party nos 2 and 3 were provided maintenance till they attain the age of majority.
Counsel for the revisionist submitted that the trial Court has passed the impugned order against the weight of evidence on record as well as law applicable to the facts of the case. The trial court has misread and misinterpreted the documentary as well as oral evidence on record. The trial court has not taken into consideration the fact that without any fault of the revisionist, the opposite party no 1 was residing away from him.
He further submitted that a decree for restitution of conjugal rights was passed by the concerned Family Court under Section 9 of the Hindu Marriage Act against the opposite party no 1 still she failed to live with the revisionist and perform her matrimonial duties, therefore her rights to maintenance allowance against the revisionist is barred under Section 125 (4) CrPC.
He also submitted that while determining the amount of maintenance allowance, the trial Court has not taken into consideration the monthly income of the revisionist.
Per contra, counsel for the opposite parties submitted that the trial Court has passed the impugned order after proper appreciation of oral and documentary evidence on record and it should not be interfered with.
He further submitted that the revisionist is a central government employee and was getting monthly salary of Rs 83,910/- per month in the year 2020 as it is mentioned in the trial court order. Now his salary has increased from that amount.
He also submitted that the parents of opposite party no 1 are bearing expenses of opposite party nos 1 to 3. The opposite party no 2, Keerti Singh, is studying in Class 7th, whose annual fees is Rs 37,700/- whereas opposite party no 3, Krishna Singh, is studying in Class 5th and his annual fees is Rs. 35,800/-, their expenses for books stationary and transportation is in addition to this amount.
The Court observed that,
From the above discussion, it can be concluded that ex-parte order passed under Section 9 of the Hindu Marriage Act is not in force.
Revisionist has also pleaded that he had lodged FIR against his wife in Police Station Tank Factory, District Chenni for leaving his house after committed theft of cash, jewellery and documents related to property. He has also pleaded, in his written statement, that he had submitted application in Police Station Kant, District Gorakhpur regarding the conduct of his wife, but he has not filed the aforesaid FIR or application given to the police authority regarding the offence committed by his wife.
Thus, allegation regarding his wife fled from his house after stealing jewellery and other items has not been proved or substantiated by oral or documentary evidence adduced by him in the trial Court. He has also pleaded in his written statement that on 29.03.2018 at 9:00 A.M a whatsapp message was sent through the mobile of his younger brother to his wife to leave her matrimonial home with him. He informed to his mother about the said message. On 29.03.2018, his wife, in conspiracy with his younger brother, left his house along with jewellery and cash etc.
In this regard, revisionist has not filed screen short of the aforesaid whatsapp message. There is ground to accept the averments made by the revisionist that his wife has left his house with his younger brother and she is living in adultery with him. Therefore, it cannot be concluded that his wife is living in adultery with the younger brother of the revisionist. Thus, issue no 2 was rightly determined by the trial Court in affirmative against the revisionist.
Regarding issue no 3, the revisionist has pleaded, in his written statement filed against the application under Section 125 Cr.P.C that his wife has done B.Ed, course in computer and beautician. He has also pleaded that that his wife earns about Rs 40,000/- per month by taking tuitions and other professional works, but he has not submitted any documentary or oral evidence in this regard. Opposite party No 1 has denied in her application filed under Section 125 Cr.P.C that she has no earning and she is financially dependent on her parents.
Admittedly, revisionist is working as constable in CRPF. Opposite party No 1 has filed his salary slip for the month of January, 2023, in which, his monthly salary has been shown as Rs.65,773/- The revisionist has pleaded in his written statement that his salary is only Rs 40,000/- per month and after deduction of instalment towards loan taken for purchasing land and paying premium of LIC, he is receiving only Rs 28,446/- per month.
Thus, the alleged deduction from the gross salary of the revisionist/husband due to payment for premium of insurance or instalment of plots purchased by him cannot be taken into consideration as no such deduction from gross salary is permissible under the law.
Under these facts and circumstances, the monthly salary of the revisionist is taken to be Rs 65,773/- in January, 2023 as evidenced by the salary slip filed by his wife in the trial Court.
“The Apex Court in Rajathi Vs C Ganesan, (1999) 6 SCC 326 has held that the words “unable to maintain herself” would mean the means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 was enacted on the premise that it is the obligation of the husband to maintain his wife, children and parents. It will, therefore, be for him to show that he has no monetary means to discharge his obligation and he did not neglect or refuse to maintain them or anyone of them. The statement of the wife that she was unable to maintain herself would be enough and it would be for the husband to prove otherwise.
The Apex Court has held that while deciding the criminal revision against the order passed under Section 125 Cr.P.C or corresponding section under Domestic Violence Act, Court shall take only consideration the present income of the husband and wife for determining maintenance payable to the wife and children. Apart from the fees for school of opposite party Nos 2 and 3, money is also required for purchasing books, stationary, conveyance to school and other expenses of opposite party Nos 2 and 3.
In this regard, trial Court has provided Rs 15,000/- per month to the opposite party No 1 and Rs 5000/- each to the opposite party Nos 2 and 3, total of Rs 25,000/- per month, which cannot be considered to be excessive. Thus, the trial Court has rightly and justly fixed the maintenance allowance payable to the opposite party Nos 1 to 3.
From the above discussion, I am of the view that while passing the impugned judgement and order, the trial court has not committed any illegality, irregularity, jurisdictional error or impropriety.
There is no merit in the criminal revision and the same is liable to be dismissed”, the Court further observed while dismissing the petition.