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ALLAHABAD HIGH COURT
Arvind Kumar Mishra-I, J.
Smt. Jyoti Alias Gudiya —Petitioner
versus
State of U.P. and Anr. —Respondents
Criminal Miscellaneous Writ Petition No.16302 of 2012
Decided on 18.2.2015
Held: In view of rival contentions made by the parties and after considering the above submissions - the moot point which arises for consideration in this petition relates to the fact whether the petitioner has just and reasonable cause to refuse to live with her husband?
In this context, I have perused the judgment and orders of both the courts below wherein it is recorded that the trial court somehow overlooked the fact which has surfaced in the cross examination of the petitioner that the condition imposed by the petitioner is stiff one. It pertains to condition that the only way open to the husband-respondent no.2-is to first desert his mother and then to reside with his wife-the petitioner. This aspect of the case has got substantial bearing in this case, because in order to receive the amount of maintenance, it was incumbent upon the wife to prove reasonably that she has got just cause to live separately from her husband. But in this case, the wife herself is imposing unreasonable condition for respondent no.2-her husband to first desert his mother before the petitioner can reside with him.
Can a wife, in the absence of any special reasonable cause, insist upon her husband, as a precondition, that he should first desert his parents in order to enjoy company of his wife. Certainly, in the absence of any reasonable cause the condition so imposed will always be termed unreasonable and unjust. No such special reasons have been assigned by the petitioner as to why she is not willing to live with and in the company of her mother-in-law. Thus imposition of the above pre-condition cannot be said to be just and reasonable cause for the petitioner to live separately from her husband.
In view of the above particular scenario of this case, the revisional court was justified in taking note of the error apparent on record in the judgment and order dated 25.05.2012 passed by the trial court pertaining to statement as appeared in the cross examination of Smt. Jyoti @ Gudiya. The exercise done by the revisional court thus cannot be termed as re-appreciation of evidence. It is obvious that the revisional court did not record any fresh finding in regard to statement of Smt. Jyoti @ Gudiya or it did not introduce any new fact. It can not be said here that the revisional court exceeded its jurisdiction.
The imposition of unreasonable condition as an excuse for living separately by either of the spouse is not permissible in law.
Here, facts reveal that the trial court did not take integral note of the evidence on record and it somehow failed to appreciate properly the facts which emerged in the cross examination of the petitioner. Mistake of trial court is apparent on record. If mistake was apparent on record, then the mistake can be rectified by the revisional court. (Paras 11 to 16)
Result: Petition dismissed.
JUDGMENT
Arvind Kumar Mishra-I, J.—List revised.
Heard learned counsel for the petitioner and learned AGA for the State of U.P.
2. No one appears on behalf of opposite party no.2 despite service of notice sufficiently.
3. By means of the present petition, the petitioner has challenged the order dated 04.10.2012 passed by the Special Judge (DAA) Court No.4, Firozabad in Criminal Revision No.116 of 2012 Vinod Kumar Vs. Smt. Jyoti @ Gudiya and another, whereby the revision preferred by respondent no.2 has been allowed and the judgment and order of the trial court dated 25.05.2012 allowing maintenance for specific period has been set aside.
4. Brief facts of this case are that the petitioner filed an application under Section 125 Cr.P.C. claiming maintenance which was numbered as 117 of 2008, Smt. Jyoti @ Gudiya Vs. Vinod Kumar, wherein proceedings took place ex parte and the application was allowed by the trial court vide order dated 11.02.2009.
5. On perusal of the record, it transpires that ex parte order was later on recalled and the matter was renumbered as Case No.97 of 2010 Smt. Jyoti @ Gudiya Vs. Vinod Kumar. Thereafter, both the parties put up their respective cases before the trial court. The trial court after framing three issues recorded specific finding and allowed application under Section 125 Cr.P.C. vide order dated 25.05.2012 specifying that the amount of maintenance is to be given for the period w.e.f. 02.04.2008 to 26.05.2011 at the rate of Rs.1500/- per month to the petitioner/wife.
6. Feeling aggrieved by the aforesaid order dated 25.05.2012, respondent no.2 preferred Criminal Revision No.116 of 2012 Vinod Kumar Vs. Smt. Jyoti @ Gudiya and another which was allowed by the Special Judge (DAA) Court No.4, Firozabad vide order dated 04.10.2012, setting aside the order dated 25.05.2012 passed by the trial court. Hence this petition.
7. Learned counsel for the petitioner has contended that in this case, finding recorded by the revisional court is patently illegal, perverse and against weight of evidence on record. The revisional court was not justified in re-appreciating the evidence on record as that was beyond the scope of the revisional court. The revisional court could not record any patent irregularity in the order of the trial court, therefore, the impugned order dated 04.10.2012 is liable to be set aside and the judgment and order of the trial court dated 25.05.2012 is liable to be restored and sustained.
8. Learned AGA, while supporting the judgment and orders impugned in the present petition, has submitted that the very reasons given in the impugned judgment and order dated 04.10.2012 passed by the revisional court are piece of categorical admission of the petitioner before the trial court that in case her mother-in-law resides with her husband, then she will not reside with her husband. Meaning thereby, that the petitioner wants to impose condition on respondent no.2-her husband-that in case her husband wants to enjoy her company then he will have to desert his mother. This condition was not found sufficient.
9. Learned AGA further contended that guarantee/undertaking was given for securing safety of the petitioner by her husband, even then she was not willing to live with her husband as such there was no justification for living separately from her husband, therefore, no maintenance can be awarded to her.
10. Learned AGA has referred Section 125 (3) Cr.P.C. in support of his contention which reads as under:
“Section 125 (3) Cr.P.C. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term
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