IMPORTANT POINT
Maintenance – An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able to reasonably maintain his wife and children.

JUDGMENT

Surendra Singh-I, J.—Heard Sri Praveen Kumar Tripathi, learned counsel for the revisionist and Sri Pankaj Dwivedi, learned counsel for the opposite party no. 2.

2. By means of this criminal revision, the revisionist has challenged the impugned order dated 10.12.2019 passed by learned Additional Principal Judge, IIIrd, Family Court, Allahabad in Maintenance Case No. 506 of 2015, Smt. Durga Devi Vs. Matapher filed u/s 125 Cr.P.C. and impugned judgement and order dated 07.12.2022 passed by learned Additional Principal Judge, Family Court- 2, Allahabad in Misc. Case No. 02 of 2020 (Matapher Vs. Durga Devi) instituted u/s 127 Cr.P.C.

3. By the impugned judgement and order dated 10.12.2019, the Additional Principal Judge, IIIrd, Family Court, Allahabad had allowed the application filed u/s 125 Cr.P.C. and granted maintenance of Rs.7,000/- per month to opposite party no. 2, Smt. Durga Devi.

4. By the impugned judgement and order dated 07.12.2022, the Additional Principal Judge, Family Court- 2, Allahabad, had rejected application u/s 127 Cr.P.C. filed by the revisionist, Matapher.

5. Averment has been made by learned counsel for the revisionist that in the trial court, arguments were made on behalf of the revisionist that opposite party no. 2, Smt. Durga Devi was not his legally wedded wife and her both children, namely, Akansha and Alok were not his children. He had requested the trial court for DNA test but the trial court did not pass any order on his application for DNA test. It has also been submitted that the trial court without application of judicial mind to the facts and circumstances of the case and the evidence on record, passed the impugned order dated 10.12.2019 and 07.12.2022 and allowed the application of opposite party no. 2 u/s 125 Cr.P.C. and rejected the application u/s 127 Cr.P.C. filed by the revisionist respectively. The aforesaid orders were illegally passed by the court against the provisions of law merely based on surmises and conjectures. Therefore, they are liable to be set-aside. It has also been submitted that revisionist’s marriage was not solemnized with the opposite party no. 2, Smt. Durga Devi and the children of opposite party no. 2 are not born out of their wedlock. It has also been submitted that opposite party no. 2, Smt. Durga Devi is cultivating his farm and taking the income arising out of selling of crops. Her son has also been settled and her daughter has been married. Therefore, the trial court has provided maintenance allowance to the opposite party no. 2 without any justification. It has also been submitted that the revisionist left his village for his education in his childhood. After completing education, he came into government service and solemnized his marriage with Gayatri Devi. Two sons, namely, Saurav Pathak and Ashutosh Pathak were born out of their wedlock. In the year 2013, he retired from the government job. Since then he is residing in Allahabad along with his wife and children. His brother, Vansh Raj kept opposite party no. 2, Smt. Durga Devi and is residing in the village with her. In the year 2013, his son Saurav Pathak died. On that occasion, his brother Vansh Raj visited his house. He threatened the revisionist not to move towards the agricultural land otherwise he will face dire consequences. It has also been submitted that on 03.11.2016, opposite party no. 2, Smt. Durga Devi lodged Case Crime No. 797 of 2016 u/s 420, 467, 468, 469, 471 I.P.C. in Police Station-Dhoomanganj, District-Allahabad, against the revisionist in collusion with his brother, Vansh Raj. She has also filed complaint case on 17.12.2015 u/s 12 of the Domestic Violence Act against him. His brother, Vansh Raj has illegally occupied the share of the revisionist in his parental agricultural land. It has also been submitted that the revisionist filed objection against the application u/s 125 Cr.P.C. and produced his oral and documentary evidence. He had filed application u/s 127 Cr.P.C. for alterat