Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 212

IN THE HIGH COURT OF ALLAHABAD
Suresh Kumar Gupta, J.
Ankur Gupta – Appellant
Vs.
State Of U.P. And 3 Ors. – Respondent
CRIMINAL REVISION No. -2541 of 2019
Decided On : 3-3-2021

Advocates Appeared:
For The Appellant : Rajiv Lochan Shukla, J.B. Singh
For The Respondent: G.A.,Nipun Singh

Point of law: Grant of interim maintenance - Monetary relief granted under section 125 Cr.P.C. shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. – Merely, because wife is capable of earning, is not sufficient ground to refuse claim of maintenance granted by Court to the minor daughters of the opposite party No. 2.

Headnote:
Code of Criminal Procedure, 1973 – Section 125 – Maintenance – Grant of interim maintenance -
Finding of the court:
If the instant case is examined in view of the aforesaid settled legal propositions, it is not permissible for the Court to re-appreciate the evidence. – More so, there is nothing on record to show that the findings of facts recorded by the Family Court are perverse, based on no evidence or have been arrived contrary to the evidence on record. – Court has to see whether the wife has refused to live with her husband without any sufficient reason and it is also to be seen whether the husband has neglected to maintain his wife, without any valid reason. – In the present case, admittedly, the parties are living separately from July, 2011 and the reason for living separately is physical and mental cruelty meted out to the wife and one of the just ground for refusal of wife to live with her husband is that her husband is in extra marital relationship with another woman. – Monetary relief granted under section 125 Cr.P.C. shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. – Merely, because wife is capable of earning, is not sufficient ground to refuse claim of maintenance granted by Court to the minor daughters of the opposite party No. 2. – Plea advanced by the husband is that he does not have the means to pay or he does not have job or his business is not doing well, these are only the bald excuses and in fact, they have no acceptability in law. – If the husband is healthy, able bodied and is in the position to support himself, thus, he is under the legal obligation to support his minor children and her wives. – So in these circumstances, the order of the learned family court to award the maintenance to the minor daughters of the revisionist is appropriate, just and legal. – Since the opposite party No. 2 have already got the house rent allowance so, in my opinion, house rent allowance is not permissible under the maintenance allowance. – Judgement and order of the family court regarding Rs. 20,000/-as rent allowance is liable to be quashed. – It is also pertinent to mention that the rent allowance is also not come in the purview of maintenance allowance under section 125 Cr.P.C. So the award of maintenance allowance to the minor children (opposite party Nos. 3 and 4), does not suffer from any illegality, impropriety, perversity or jurisdictional error. – Finding of the court below for awarding maintenance to her minor daughter of Rs. 25,000/-each, is just and proper but Rs. 20,000/-as a house rent allowance is not inconsonance with the parameter of Section 125 Cr.P.C.
Result: Revision Partly Allowed

JUDGMENT :

Suresh Kumar Gupta, J.

1. This Crl. Revision has been preferred by the revisionist being aggrieved with the judgement and order dated 29.4.2019 passed by the Principal Judge, Family Court, Gautam Budh Nagar in Case No. 120 of 2014 (Smt. Rachna Vs. Ankur Gupta) under Section 125 Cr.P.C., P.S. Sector-39 NOIDA, District Gautam Budh Nagar whereby the learned court below has been pleased to award Rs. 25,000/-maintenance each to the two minor daughters of the revisionist and Rs. 20,000/-as rent, cumulatively Rs. 70,000/-in exercise of powers under Section 125 Cr.P.C.

2. Brief facts of this case are that the opposite party No. 2 has filed an application against the revisionist under Section 125 Cr.P.C. which is registered as Misc. Complaint No. 120/2014 (Smt. Rachana Vs. Ankur Gupta) before the learned Principal Judge/Family Court, Gautam Budh Nagar on 26.4.2014.

3. As per complaint, it has been stated by the opposite party No. 2 that her marriage was solemnized with the revisionist on 20.2.2008 and after their marriage both the revisionist and opposite party No. 2 were living together at Bangalore very happily and on 14.8.2009 a daughter-Aakansha was born to the opposite party No. 2 with the weedlock of revisionist. Later on, 17.2.2012 another daughter-Yashashwini was born to the opposite party No. 2, presently both the daughters are in the care and custody of the opposite party No. 2.

4. After marriage, revisionist as well as opposite party No. 2 moved to the Bangalore where the revisionist is an employee in IT Major Yahoo Software Development Corporation as Product Manager and the Opposite party No. 2 also got employment in NIFT Banglore as Assistant Professor.

5. It is further alleged in her complaint that during pregnancy of second daughter, revisionist solemnized marriage in USA with Ms. John NG and totally neglected the opposite party No. 2 so the opposite party No. 2 moved out to Bangalore and take shelter at her parent’s house in NOIDA. Opposite party No. 2 with two daughters, residing with her parents since 17.3.2012 and she is now transferred to NIFT Campus, Haus Khas New Delhi and where she is working as Assistant Professor.

6. After filing the written objection and exchanging the affidavits, Principal Judge/Family Court, Gautam Budh Nagar directed the revisionist to deposit Rs. 20,000/-per month from the date of order to the opposite party No. 2 for interim maintenance of both daughters vide order dated 7.11.2014.

7. In pursuance of the order of family Court, he is regularly paying the money to the opposite party No. 2 from November till April 2019 and during pendency of this application, statement of opposite party No. 2 is recorded before the learned court below as PW1 on 16.2.2016 and 14.3.2016. In consequences of relevance of opposite party no. 2, revisionist has also filed a chief examination by means of an affidavit on 19th August, 2016 as DW-1.

8. During pendency of interim maintenance, revisionist also moved the application to quash and modify the order of interim maintenance but no any order has been passed and opposite party No. 2 filed the income tax return of the revisionist as well as her income tax for assessment year 2015 to 2019.

9. Learned Principal Judge/Family Court, Gautam Budh Nagar without applying his judicial mind and totally ignoring the materials and evidence on record passed the impugned judgement and order dated 29.4.2019 which is totally illegal and arbitrary.

10. Learned counsel for the revisionist submitted before the court that the property of House No. 122B, Sector Panchkula, House No. 450, Sector 2 Panchkula and House No. 403 Tower No. 6, Royal Estate Zirakpur Punjab are incorrect. It is further submitted that learned trial court while passing the impugned judgment and order has considered the economic status of the revisionist and passed the impugned judgement and order. Learned counsel further submitted that the learned court has misinterpreted the oral and documentary evidence and fin