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2025 Supreme(Online)(UK) 9043
HIGH COURT OF UTTARAKHAND
Ashish Naithani, J
SHIVAM KUMAR – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
CRLR 751 / 2023
For the Appellants/Petitioners: M.K. Ray
For the Respondents: Vipul Painuly, Yogesh Pacholia
Revisional jurisdiction is limited to correcting patent illegality or perversity. Courts may determine interim maintenance using reasonable estimates of income to prevent destitution, distinguishing between the mere capacity to earn and actual employment, without requiring final adjudication of facts at an interlocutory stage.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 125, 397 and 401 - Interim maintenance - Revisional jurisdiction - Scope and ambit - Court sitting in revision is not to substitute its view for that of the court below; it should only interfere where the order suffers from patent illegality, material irregularity, or perversity - Interim maintenance at an interlocutory stage is intended to prevent destitution and ensure basic sustenance pending final adjudication of disputed facts such as desertion or cruelty. (Paras 17, 18, 23, 24)
(B) Maintenance - Determination of income - Capacity to earn vs. actual earning - Where the husband asserts minimal earnings without credible substantiating material, the court is entitled to make a reasonable estimation via notional income to ensure basic sustenance of dependents - Mere assertion of educational qualifications or earning capacity is insufficient to deny maintenance absent proof of actual remunerative employment. (Paras 20, 21)
Facts of the case:
A petition for interim maintenance was filed by a spouse and a minor child alleging no independent source of income and seeking financial support. The opposing party contested the application by raising issues of cruelty, the alleged voluntary desertion of the matrimonial home by the spouse, and his own financial limitations. The trial court awarded a fixed monthly sum of interim maintenance.
Findings of Court:
The court held that the trial court's order was within the scope of its jurisdiction and did not demonstrate any patent error. It emphasized that at the interlocutory stage, the court is not required to reach a final conclusion on contested questions of fact and must focus on the necessity of providing immediate financial support to prevent destitution.
Issues: The main issues were the legality of the maintenance award, whether the court could rely on notional income to determine the husband's contribution, and the impact of the spouse's educational qualifications on the entitlement to maintenance.
Ratio Decidendi: Revisional courts are restricted to reviewing for jurisdictional errors or perversity. Since the marital relationship and paternity are admitted and no conclusive documentary evidence was produced to establish the wife's actual income, the award of subsistence maintenance to avoid destitution is legally sound and balanced.
Result: Revisionist’s petition dismissed.
2025:UHC:11552
Judgment Reserved on: 18.11.2025
Judgment Delivered on: 24.12.2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Revision No.751 of 2023
Shivam Kumar ......Revisionist
Vs.
State and others …..Respondent
Presence
Mr. M.K. Ray, learned counsel for the Revisionist.
Mr. Vipul Painuly, learned A.G.A. for the State of Uttarakhand.
Mr. Yogesh Pacholia, learned counsel, for Respondent Nos.2 and 3.
Hon’ble Ashish Naithani, J.
The present Criminal Revision arises out of an order dated
25.07.2023, passed by the learned Judge, Family Court I, Udham Singh Nagar,
in Case No. 07 of 2022, “Vaishali vs. Shivam” instituted under Section 125
CrPC by Respondent No. 2.
2. As per the facts, the marriage between the Revisionist and Respondent
No. 2 was solemnized on 16.02.2021 according to Hindu rites and customs.
From the said wedlock, a daughter was born, who is arrayed as Respondent No.
3 through her natural guardian mother.
3. Respondent No. 2 filed an application for interim maintenance
alleging that she and the minor child had been subjected to cruelty and
harassment, that she was compelled to leave the matrimonial home, and that she
had no independent source of income to maintain herself or the child. It was
asserted that the Revisionist is an advocate earning substantial income and has
neglected to maintain them.
4. The Revisionist filed objections to the interim maintenance
application admitting the marital relationship and the paternity of the child, but
1
Criminal Revision No. 751 of 2023, “Shivam Kumar Vs State of Uttarakhand and Others”
Ashish Naithani J.
##PAGE2##2025:UHC:11552
disputing the allegations of cruelty and dowry demand. It was asserted that
Respondent No. 2 left the matrimonial home voluntarily without sufficient
cause, that she is educated and capable of earning, and that she is not entitled to
interim maintenance.
5. The Revisionist further pleaded that he is a junior advocate, suffering
from cardiac ailments, has negligible income, and is dependent upon others for
his treatment and livelihood.
6. Upon hearing the parties, the learned Family Court passed the
impugned order granting interim maintenance of Rs. 5,000 per month in favour
of Respondent No. 2 during the pendency of proceedings under Section 125
CrPC, holding that the wife had disclosed no income and that the husband could
not avoid his obligation to maintain his wife and minor child.
7. Aggrieved by the said order, the Revisionist has preferred the present
Criminal Revision under Sections 397 and 401 CrPC seeking setting aside of
the interim maintenance order.
8. Learned counsel for the Revisionist submits that the impugned order
suffers from material illegality and is based on presumption rather than
evidence. It is contended that the learned Family Court failed to properly assess
the income of the Revisionist and arbitrarily fixed a notional income without
any factual foundation.
9. It is argued that Respondent No. 2 left the matrimonial home of her
own volition without sufficient cause, and therefore, in view of Section 125
sub-section (4) CrPC, she is disentitled from claiming maintenance. Reliance is
placed on the charge sheet and other materials to contend that the allegation of
forced ouster was not substantiated.
10. Learned counsel for the Revisionist further submits that Respondent
No. 2 is well educated and was employed prior to marriage, and that material
was placed on record suggesting her continued engagement with a financial
institution. It is contended that the learned Family Court ignored these aspects
while granting interim maintenance.
2
Criminal Revision No. 751 of 2023, “Shivam Kumar Vs State of Uttarakhand and Others”
Ashish Naithani J.
##PAGE3##2025:UHC:11552
11. It is also urged that the Revisionist is a junior advocate without a
stable practice, suffering from serious cardiac illness, and burdened with
medical expenses and family responsibilities, and that the grant of interim
maintenance without considering these circumstances has caused grave
prejudice.
12. Lear
