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2008 Supreme(All) 1236
[2008(6) ADJ 647]
ALLAHABAD HIGH COURT
BEFORE : VIJAY KUMAR VERMA, J.
AMOD KUMAR SRIVASTAVA .............Revisionist
Versus
STATE OF U.P. AND OTHERS ..............Opposite Parties
(Criminal Revision Nos. 4400 and 5598 of 2006, decided on 23rd May, 2008)
Counsel :
Sameer Jain for the Revisionist; Sudhir Kumar Srivastava, A.G.A. for the Opposite Parties.
Headnote:Criminal Procedure Code, 1973—Section 125—Code of Civil Procedure, 1908—Order XXI, Rule 32—Hindu Marriage Act, 1955—Section 13—Maintenance—Entitlement of—Claim for enhancement—Whether an unmarried daughter who has attained majority, but unable to maintain herself—And a wife, who wilfully disobeys directions given by Court in decree for restitution of conjugal rights—Can claim maintenance allowance under Section 125 of Cr.P.C.—Daughters who attained majority not entitled to maintenance from their father—Unless they are unable to maintain themselves on account of any physical or mental abnormality or injury—And such claimants unable to maintain themselves—Finding that wife is unable to maintain herself—Her husband neglected to maintain her—Finding of fact cannot be disturbed by High Court in its revisional jurisdiction—Reappreciation of evidence not possible in revisional jurisdiction—In present case decree for restitution of conjugal right obtained by revisionist/husband ex parte—Never put into execution under Order XXI, Rule 32 of CPC—Wife does not become disentitled to get maintenance—During pending divorce petition parties settled their dispute—As a result divorce petition dismissed—Having regard to social status of parties and monthly income of revisionist/husband—Maintenance allowance to wife enhanced from Rs. 2,500 to Rs. 4,000 from date of order. [Paras 8, 9, 14, 15, 16, 20 and 21]
Hon’ble Vijay Kumar Verma, J.—Whether an unmarried daughter who has attained majority, but unable to maintain herself and a wife, who wilfully disobeys the directions given by the Court in the decree for the restitution of conjugal rights, can claim maintenance allowance under the provisions of Section 125 of the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) are the main questions that fall for consideration in these revisions.
2. Challenge in both these revisions is to the judgment and order dated 24-6-2006 passed by the Family Court Varanasi in Case No. 12 of 2002, Smt. Neelam Srivastava v. Sri Amod Kumar Srivastava, whereby allowing the application under Section 125, Cr.P.C., maintenance allowance @ Rs. 2,500/- per month to Smt. Neelam Srivastava and Rs. 2,000/- per month to both the daughters namely Km. Bhavya and Km. Divya (opposite parties No. 3 and 4 in Crl. Revision No. 4400 of 2006) has been granted from the date of order. Smt. Neelam Srivastava has prayed in Criminal Revision No. 5598 of 2006 to enhance and grant maintenance allowance from the date of application under Section 125, Cr.P.C.
3. Shorn of unnecessary details, the facts leading to the filing of these revisions, as emerging from the record, in brief, are that marriage of Sri Amod Kumar Srivastava and Smt. Neelam Srivastava took place according to the Hindu rites and rituals in the year 1981. Out of the wedlock, the couple was blessed with two daughters namely Km. Bhavya and Km. Divya. Unfortunately their marriage could not succeed. Ultimately, Smt. Neelam Srivastava had to resort to the provisions of Section 125-Cr.P.C. and she filed an application for maintenance against her husband Sri Amod Kumar Srivastava on 12-3-1986 in the Court of Munsif Magistrate, Varanasi. The case remained pending for a considerable long period and ultimately the application under Section 125, Cr.P.C. was allowed vide impugned order dated 24-6-2006 passed by the Family Court Varanasi, whereby the maintenance allowance as mentioned in para (2) above has been granted from the date of order. Hence these revisions.
4. When the revisions were called for hearing on revising the list, none appeared for Smt. Neelam Srivastava and her daughters Km. Bhavya and Km. Divya. Hence arguments of Sri Sameer Jain Advocate, learned Counsel appearing for Sri Amod Kumar Srivastava in both revisions and learned AGA for the State were heard.
5. Two contentions were raised by the learned Counsel for the revisionist Amod Kumar Srivastava. The first contention was that both the daughters namely Km. Bhavya and Km. Divya had attained majority prior to the passing of impugned judgment and hence they are not entitled now to get any maintenance under the provisions of Section 125, Cr.P.C. It was also submitted in this regard that the elder daughter Km. Bhavya has married on 13-5-2007 and on this ground also she is not entitled to get any maintenance from her father. In support of this first contention, the learned Counsel for the revisionist in Crl. Revision No. 4400 of 2006 has placed reliance on the following cases :
(1) Moideenkutty v. Pathumma and others, 1984 (2) Crimes 355.
(2) Kum. L. Usharani and others v. D.S. Lakshmaiah, 1993 Cri. L.J. 982 and
(3) T.P.S. Selva Saroja v. T.P.S.H. Sasinathana, 1989 Cri. L.J. 2032.
6. The second contention of Sri Sameer Jain was that a decree for the restitution of conjugal rights was passed against Smt. Neelam Srivastava on 17-4-1986 in suit No. 54 of 1986 by Civil Judge Jaunpur and since that decree has not been complied with by her and she did not come to live with her husband Sri Amod Kumar Srivastava, hence on this ground, she is disentitled to get any maintenance allowance from her husband. In support of this contention Sri Jain has placed reliance on the following cases :
(1) Harish Mansukhlal v. Hansagauri Ramshanker and another, 1982 Cri. L.J. 2033.
(2) In the matter of : Rabindra Nath Roy, 1995 Crl. L.J. 1187.
(3) Balram Dash v. Smt. Gitanjali Dash
