Arvind Kumar vs State of Uttar Pradesh and Others

Mukhtar Ahmad, J—Challenge in this revision is the order dated 1.1.2015 passed by Principal Judge, Family, Court Banda in case No. 43/IX/13 under Section 125 Cr.P.C. Whereby opposite party No. 2. Smt. Sandhya has been allowed maintenance @ Rs. 3000/- per month from the date of moving the application and her minor daughters Km. Muskan and Km. Chunnua @ Bauwa each @ Rs. 2000/- per month each.

The facts giving rise to this revision are that an application under Section 125 Cr.P.C. was moved by Smt. Sandhya against her husband Arvind Kumar @ Bhoora for providing maintenance to her and her two daughters aforesaid. It was asserted in the application that Smt. Sandhya was married with Arvind Kumar on 2.3.1999 as per Hindu rites and customs; that she performed all the duties and liabilities as a faithful wife; that from the wedlock two daughters Km. Muskan and Km. Chunnua @ Bauwa were born; that sufficient dowry was given in the marriage but her in-laws were not satisfied and her husband started mental and physical torture. He snatched her all the ornaments; that on 30.10.2006 her father took her to his home and since then she is residing in her parental home; that revisionist has a Kerana shop, besides agricultural holdings is also there from which he earn about Rs. 15,000/- per month. It was also apprehended that the applicant has danger to her life if she lives with the revisionist. On this ground maintenance was claimed.

Revisionist Arvind Kumar @ Bhoora has filed his written statement, in which he admitted the marriage with opposite party No. 2 and borning out both the daughters, but other facts regarding demand of dowry and danger to her life were denied. He also asserted that her wife has refused to live with him; that on 4.10.2006 she had gone with all the ornaments to her parental house and thereafter she did not return to his house despite his best efforts. It was also stated that he is still ready to keep her with him even with full guarantee of safely.

In oral evidence Smt. Sandhya produced herself as P.W. 1 while her father Parsadi Lal Sahu was examined as P.W. 2. In documentary evidence educational certificate of her daughter were filed.

In defence Arvind Kumar-revisionist himself appeared in the court as DW 1 and her father Devi Deen Sahu as 2.

Learned Family Court after considering the evidence allowed the application and provided maintenance as mentioned above. Feeling aggrieved with the aforesaid judgment and order this revision has been preferred.

I have heard learned counsel for the revisionist and learned A.G.A. for the State. No one appeared on behalf of the opposite party Nos. 2-4 despite sufficient service.

It is admitted version of the parties that Smt. Sandhya had married to Arvind Kumar @ Bhoora. It is also admitted that two daughters i.e. Km. Muskan and Km. Chunnua @ Bauwa were born out of the wedlock. It is also not disputed that Smt. Sandhya and her minor daughters are residing in her parental house.

Learned counsel for the revisionist has submitted that Smt. Sandhya is not entitled for any maintenance for two reasons, firstly she has willfully refused to live with the revisionist without any sufficient cause and secondly it has not been proved, established even pleaded that she is unable to maintain herself. It is further submitted that the revisionist is still ready and willing to keep her and daughters with him but she has clearly refused; that learned family court has not considered this aspect in correct perspective and arrived at a wrong conclusion. It is also submitted that he also initiated proceedings for restitution of conjugal rights but despite orders and direction of the court she has refused to live with him. In this regard perusal of record shows that in the written statement the husband-revisionist has specifically pleaded that his wife is residing separately without any reasonable cause while he is willing to keep her and daughters with him and he is also ready to give written guarantee/undertaking of their safety.

Smt. Sandhya has stated in her cross examination that

At this juncture it would be proper to discuss this point in the light of sub-section 4 of Section 125 Cr.P.C. which provides that "no wife shall be entitled to receive the allowance of maintenance and expenses of proceedings, as the case may be from her husband under this Section if she is living in adultery or if without any sufficient reason she refusing to live with her husband or if they are living separately by mutual consent".

The second limb of the argument is that Smt. Sandhya has not established even pleaded that she is unable to maintain herself. In this regard application under Section 125 Cr.P.C. supports the version of revisionist as in the application there is not a single word about this fact that she is unable to maintain herself. The opening word of Section 125 Cr.P.C. provides that if any person having sufficient means neglecting or refusing to maintain his wife or legitimate or illegitimate minor child who are unable to maintain themselves. Thus besides the fact that the husband who neglect or refuse to maintain despite sufficient means, this fact has also to be established that wife or legitimate illegitimate child are also unable to maintain themselves and thus fact should have been established by Smt. Sandhya.

In view of the aforesaid discussions it comes out that Smt. Sandhya has utterly failed to establish her case as per provisions enumerated under sub-sections (i) and (4) of 125 Cr.P.C. I am, therefore, not prepared to accept the findings of learned family court in this regard and it is held that Smt. Sandhya has refused to live with her husband i.e. revisionist without any reasonable cause and has also failed to establish that she is unable to maintain herself and in this situation in my opinion she is not entitled for any maintenance.

As far as minor daughters are concerned admittedly no arrangement of their maintenance has been made by the revisionist so they are entitled to get the maintenance till they attain majority.

Learned counsel for revisionist next contended that maintenance allowance of Rs. 2000/- per month each to two minor daughters (total Rs. 4000/- per month) has been ordered to be provided while the revisionist is a person having no sufficient means. Further the amount of maintenance is excessive.

I am not satisfied with this argument. It will be added that the word ''sufficient means'' do not signify only visible means such as real property in the shape of income, estate or definite employment. It includes the capacity to earn money. If a man has good health and body he must be taken to have means to maintain his wife and children. There is no case on behalf of the revisionist that he is not having good health. Further considering increasing cost prices of essential commodities the maintenance allowance provided to minor daughters cannot be held to be excessive.

In view of the aforesaid discussions made above, this revision is partly allowed. Application under Section 125 Cr.P.C. is hereby rejected in respect Smt. Sandhya opposite party No. 2 as she is not entitled for any maintenance. However, order of maintenance to both the minor daughters viz. Km. Muskan and Km. Chunnua @ Bauwa @ Rs. 2000/- per month each (total Rs. 4,000/- p.m.) is confirmed.