Neutral Citation No. - 2023:AHC:123312

Court No. - 79

Case :- CRIMINAL REVISION No. - 4498 of 2022

Revisionist :- Gaurav Vashishtha

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Abhinav Gaur,Ankit Shukla,Mohd.

Rashid Siddiqui,Sr. Advocate

Counsel for Opposite Party :- G.A.,Suresh Chandra Pandey

Hon'ble Prashant Kumar,J.

Heard Mr. Abhinav Gaur, learned counsel for the revisionist,

Mr. Suresh Chandra Pandey, learned counsel for the opposite

party no. 2, learned A.G.A. for the State and perused the record.

The instant revision has been filed challenging the order dated

30.08.2022 passed by learned Additional Principal Judge,

Family Court, Mathura in Case No. 882 of 2019 (Ruchi Rawat

Vs. Gaurav Vashistha.) by means of impugned order the

maintenance under section 125 Cr.P.C. was enhanced to Rs.

10,000/- from Rs. 4,000/- (as fixed by this Court).

Learned counsel for the revisionist states that wife's right to

claim maintenance can be denied in the circumstances only

provided under section 125(4) Cr.P.C. Section 125(4) is being

quoted herein under:-

Section 125(4) in The Code Of Criminal Procedure, 1973

"No wife shall be entitled to receive an allowance [for the maintenance or

the interim maintenance and expenses of proceeding, as the case may be,]

from her husband under this section if she is living in adultery, or if,

without any sufficient reason, she refuses to live with her husband, or if

they are living separately by mutual consent."

Counsel for the revisionist further submits that as per this

section if a wife leave the house on her own free will she will

not entitled for maintenance under section 125 Cr.P.C. His

argument is that the respondent no. 2 has left the house on her

own free will. This fact could also be substantiated by first

information report dated 28th December, 2017, in which it has

been stated that on 25th December, 2017, parents of respondent

no. 2 has come down to the matrimonial house and beaten the

husband (applicant herein) and his parents. A medical report in

this effect has also been brought on record. Thereafter, she left

her matrimonial house on her own free will, on this FIR a

charge sheet was submitted on 23rd March, 2018. This also,

goes to show that she had left her matrimonial house on her

own free will.

The counsel for the revisionist further submits that after she had

left her matrimonial house, the revisionist filed an application

for divorce on 15th January, 2018 in which respondent no. 2 has

filed a written statement and opposing the same. Thereafter, as a

counter blast, the respondent no. 2 has filed an FIR on 19th

February, 2018, the moment she came to know about the

lodging of the divorce petition, in which final report was also

submitted on 28th February, 2018, stating that allegation

levelled by respondent no. 2 were baseless and no evidence was

found to institute a criminal case. Thereafter, respondent no. 2

also filed a protest petition in which reinvestigation was

ordered. On 11.11.2019, the Judicial Magistrate issued summon

against the revisionist in complaint case no. 163 of 2019,

against which a criminal revision has been filed which was

rejected on 25.08.2021. Against which the revisionist has filed

an Application u/s 482 No. 21219 of 2021 before this Court,

and an interim order was passed on 16.05.2022 in favour of the

revisionist, and the said application is still pending before this

Court.

During the pendency of these criminal proceedings an

application under section 125 Cr.P.C. filed by respondent no. 2

in which an interim maintenance for an amount of Rs. 5,000/-

per month has been awarded by the order dated 25th August,

2020, against which the respondent no. 2 filed another

Application u/s 482 Cr.P.C. No. 1585 of 2021 before this Court

and this Court vide order dated 21.01.2021 reduced the interim

maintenance from Rs. 5,000/- to Rs. 4,000/- per month and the

same is be