Arvind Kumar vs State of U.P. and Another

Raj Mani Chauhan,J.

Heard the learned Counsel for the Petitioner, learned Counsel for the opposite party No. 2 and learned A.G.A. as well as perused the documents available on record.

This petition under Article 226 of the Constitution of India has been filed by the Petitioner for quashing the impugned judgment and order dated 4.4.2009, passed by the learned Additional Sessions Judge, Court No. 1, Sitapur in Criminal Revision No. 430 of 2008; Arvind Kumar v. Smt. Kanchan Criminal Revision No. 430 of 2008, by which the learned Additional Sessions Judge has partly allowed the revision and modified the order dated 10.6.2008, passed by the learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Sitapur (hereinafter referred to as the ''Judicial Magistrate) in Criminal Case No. 45 of 2006; Smt. Kanchan v. Arvind Kumar Criminal Case No. 45 of 2006, reducing the amount of maintenance from Rs. 2000/-to 1000/-.

The relevant facts giving rise to the present petition, in brief, are that the opposite party No. 2 Smt. Kanchan who is wife of the Petitioner had moved an application u/s 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, Sitapur against the Petitioner for maintenance. The application was contested by the Petitioner. The parties had filed oral and documentary evidence in support of their contentions. The learned Judicial Magistrate vide judgment and order dated 10.6.2008 allowed the application filed by the opposite party No. 2 and directed the Petitioner to pay maintenance allowance to the opposite party No. 2 at the rate of Rs. 2,000/-per month from the date of application. The learned Judicial Magistrate further ordered that the maintenance allowance payable before the date of judgment i.e. 10.6.2008 will be paid in six equal installments within 12 months.

The Petitioner being aggrieved by the order passed by the learned Judicial Magistrate, filed criminal revision before the learned Sessions Judge, Sitapur which was partly allowed by the learned Additional Sessions Judge by the impugned order dated 4.4.2009 and modified the amount of maintenance as ordered by the learned Judicial Magistrate. He reduced the amount of maintenance from Rs. 2,000/- to Rs. 1,000/-.

The Petitioner being aggrieved by the order passed by the learned Sessions Judge, Sitapur has filed the present petition.

The submission of the learned Counsel for the Petitioner is that the Petitioner in his written statement has specifically alleged that he had not deserted the opposite party No. 2; rather she was living in her Maika on her own sweet will. Therefore, she was not entitled to any maintenance allowance. The opposite party No. 2 in her crossexamination had specifically admitted that she did not want to live with her husband. This fact was over-looked by the learned udicial Magistrate as well as learned Additional Sessions Judge. Learned Counsel further submits that the learned Judicial Magistrate did not frame any point as to whether the opposite party No. 2 was living in her parental home on her own sweet will while he was expected to frame this point for determination while writing the judgment that the opposite party No. 2 in her cross examination has specifically stated that she does not want to accompany Arbind Kumar (Petitioner). She has further stated that once Arbind Kumar had tried to throttle but she did not mention this fact in her application. She has furtehr stated that since she does not want to accompany her husband Arbind Kumar, therefore, she has stated that Arbind Kumar had tried to throttle her. This statement of opposite party No. 1 clearly shows that she herself is living with her parents at her parental home. The finding of the trial court is that the opposite party No. 2 has been neglected by the Petitioner is against the evidence on record. The finding of the Trial Court as affirmed by the revisional court is against the evidence on record. Therefore, the finding of the trial court as well as the revisional court is perverse and is liable to be quashed. The learned Counsel for the revisionist further submits that there is no specific evidence about the income of the Petitioner, even then the trial court had directed him to pay maintenance allowance at the rate of Rs. 2,000/-per month which was reduced by the revisional court by Rs. 1,000/-. Neither the learned Judicial Magistrate nor the learned Additional Sessions had determined the actual income of the Petitioner. The amount determined by the learned Judicial Magistrate as well as learned Additional Sessions Judge is imagery; rather guessed by them. Therefore, this finding is also bad in the eyes of law. The impugned judgment and orders, passed by the learned Judicial Magistrate as well as learned Additional Sessions Judge are, therefore, illegal and are liable to be quashed. Learned Counsel for the Petitioner in support of his arguments has placed reliance of cases in Laxmi Bai Patel v. Shyam Kumar Patel, reported in IVL (2002) ACC 1102 Supreme Court, decided by the Hon''ble Apex Court and Smt. Phulwatia Devi v. Lal Mohar and Anr., reported in [2009 (1) JIC 477 , Abdul Hai v. Smt. Nazma Khatoon and Anr, Cr. R. No. 1303 of 1997) and Ram Rani Devi v. State of U.P. and Anr. Writ Petition No. 2426 (MS) of 2006, decided by this Court.

Learned Counsel for the Petitioner lastly submits that the Petitioner is still ready to keep the opposite party No. 2. Therefore, he should not be compelled to pay any amount of maintenance.

Learned Counsel for the opposite party No. 2 opposed the petition and argued that although the learned Judicial Magistrate did not frame any specific point for determination as to whether the opposite party No. 2 was living in her parental home on her own sweet will but the learned Judicial Magistrate has dealt this point in detail and on the basis of evidence led by the parties held that the opposite party No. 2 was having sufficient reason to live separately from her husband. This point was considered by the revisional court too. This Court cannot enter into this finding of fact while invoking the extra ordinary power in writ jurisdiction. The finding recorded by the trial court as well as the revisional court does not suffer from any perversity and as such the same cannot be interfered with in writ jurisdiction. As regards the amount of maintenance, the learned Additional Sessions Judge has already taken sympathetic view and reduced the amount of maintenance as ordered by the learned Judicial Magistrate from Rs. 2,000/-to Rs. 1,000/-. The Petitioner in his written statement has admitted that he is healthy and able bodied young person who can be expected to earn his livelihood and he will be presumed to be able to maintain his wife. Therefore, the finding of learned Judicial Magistrate and learned Additional Sessions judge on this point does not suffer from any illegality.

I have considered the submissions of the learned Counsel for the Petitioner and learned Counsel for the opposite party No. 2.

From a perusal of the impugned orders, it appears that the learned Judicial Magistrate as well as learned Additional Sessions Judge had dealt with all the points raised by learned Counsel for the Petitioner and passed well reasoned order which, in my opinion, does not suffer from any illegality and infirmity and as such the same does not call for any interference by this Court. The petition is devoid of any merit and is liable to be dismissed.

The petition is, therefore, dismissed.

However, it is provided that the arrears of maintenance allowance payable before the date of judgment passed by the learned Judicial Magistrate will be paid by the Petitioner in six equal installments payable within a period of 12 months from today. The first installment will be paid by the Petitioner by 10th of January 2011 and rest of amount will be paid accordingly.