Devi Dutt Chandola & Others vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

These are the two criminal revisions, which are arising out of the common judgement dated 26th April 2019, as rendered by the Family Judge, Nainital Camp, Ramnagar District Nainital in Criminal Case No. 35 of 2017, Smt. Mamta Bisht Chandola v. Devi Dutt Chandola, wherein the respondent No. 2 of Criminal Revision No. 361 of 2019, Devi Dutt Chandola v. State of Uttarakhand and others, has invoked the proceedings under Section 125 of the Cr.PC for the grant of maintenance of Rs. 1.00 lakh per month for herself and for her minor daughter Aishwarya, who was 4½ years as on 28th January 2017 i.e the date of filing of application under Section 125 Cr.PC.

The brief facts, as it emerges from the rival pleadings which was raised by the parties before the learned Family Court, it was to the effect that the true facts which are admitted between the parties is that the parties admit that they have voluntarily solemnized the marriage with each other on 26th August 2009 at the office of Sub Divisional Magistrate at Ramnagar, District Nainital. According to the averments, which have been made in the application under Section 125 CrPC by the respondent-wife of Revision No. 361 of 2019 was that the said marriage was solemnized in that fashion after the consent being granted by the parents of the applicant and the opposite party husband, to the application under Section 125 Cr.P.C. It was her allegation that the in-laws of the applicant were not satisfied with the dowry, which was provided by the parents of the applicant-wife and consequently it has resulted into harassment at the hands of the revisionist-husband (CRLR No. 361 of 2019) and his family members.

Further, it is not in dispute that as a consequence of the marriage, a daughter Aishwarya was born in the year 2012; but on account of the atrocities which was being exercised by the revisionist-husband, it was contended by the respondent No. 2 (wife), that when she was physically assaulted by the husband and his family members in the night of 8th December 2016 under the pretext of non fulfilment of a demand of cash of Rs. 5,00,000/- and also of a demand of providing a luxury Car, she contends that she was thrown out from her matrimonial home and after taking assistance from her cousin brother on 12th December 2016, she has taken a flight from Bangalore to Delhi and from Delhi, she has reached Ramnagar by Train and ever since then, she is continuously residing with her parents.

It is her case that after the aforesaid incident of 8th December 2016 and the consequential leaving of the matrimonial home on 12th December 2016, at that point of time she was carrying a pregnancy of about seven months and later on she has given a birth to a male child and thus when the dispute actually started emanating by the initiation of the proceedings under Section 9 of the Hindu Marriage Act, 1955 and thereafter by initiation of the proceedings under Section 13 of the Hindu Marriage Act, the present proceedings under Section 125 CrPC, was filed as she was unable to maintain herself and two children, who were staying with her.

In order to substantiate the pleadings pertaining to the claim of maintenance under Section 125 CrPC, which she has preferred on 28th January 2017, claiming a maintenance of Rs. 1 lakh per month, she has contended that as per the documents which she has in her possession, by way of proof, she has pleaded that the revisionist-husband was working as a Software Engineer in IBM Company at Bangalore from where his annual income which was accruing to him was about Rs. 19,50,000/-. Thus on computation of the annual income, which was accruing to the revisionist, she contended that looking to the family liability which she has to cater with, she deserves to be awarded with a maintenance of at least Rs. 1.00 lakh per month. The said application under Section 125 Cr.P.C. as preferred by the respondent-wife on 28th January 2017 was contested by the revisionist (husband), by filing an objection to the effect that the actual income, which has been projected by the applicant-wife in her application under Section 125 of Cr.P.C. is not the true and correct figure which has been projected, and apart from it, owing to the fact that he has got other liabilities also to be met by him and since his carry home salary is only of about Rs. 95,000/-per month. Apart from that he has also objected the grounds for claim of interim maintenance was bad from the viewpoint that the action of residing with the parents was at the own wisdom and decision of the respondent No. 2 herself, thus it was desertion by her only and the incident which she has narrated in the application under Section 125 Cr.P.C. which is said to have occurred on 8th December 2016 at Bangalore is absolutely a concocted incident which is narrated in order to provide the authenticity and persuasive value to the application under Section 125 Cr.P.C.

The revisionist (husband) in his application/objection (undated) para No. 19 had submitted that he has purchased a flat in the name of wife/respondent No. 2 and all the EMIs which are occurring against the said flat are still being paid by the revisionist-husband @ of Rs. 20,000/- p.m. Even the residential accommodation, which was purchased by the revisionist-husband, it was also acquired by him after taking after the loan from the Financial Institutions and thus it cannot be said that the total income, which has been projected in the application under Section 125 of Cr.P.C. was the actual income, which was being taken home by the revisionist-husband. Apart from it, the revisionist-husband has also contended that as far as the expenditure pertaining to the studies of her daughter, who was studying in Ryan International School, it was being met with by the revisionist-husband himself and hence the quantum of maintenance, which was claimed in the Application Section 125 CrPC ought not to have been awarded to the respondent-wife since she has voluntarily deserted and had voluntarily not discharged her matrimonial obligations, hence she would not be entitled for any maintenance under Section 125 of Cr.P.C.

Further, in support of his contention with regards to the deliberate desertion made at the behest of respondent No. 2 (wife), he has contended that in the proceedings under Section 9 of the Hindu Marriage Act initiated by him for restitution of conjugal rights which was instituted by him in the Family Court, Bangalore, on which the notice was issued by the learned Family Court, Bangalore to respondent No. 2 (wife), but despite of having being served with the notice, when she has not put in appearance in those proceedings, it rather reflected her mental inclination of not being in a position to discharge her matrimonial obligations.

The aforesaid contentions pertaining to the aptitude of respondent No. 2 (wife), is being sought to be pressed into the argument by the learned counsel for the revisionist (husband) by placing reliance on the statement, which was recorded by respondent No. 2 (wife), in the proceedings under Section 125 Cr.P.C. to the effect that going to the issue of atrocities and the persistent demand of dowry by the family members of the revisionist, she has categorically in her statement expressed that she doesn't want to stay any further with her husband and she doesn't intend to discharge her matrimonial obligations, because she has drawn a conclusion that looking to the aptitude of the husband, he cannot be said to be at all a reliable person with whom she would like to spend of her life.

When the proceedings under Section 125 CrPC before the learned Family Court, whom it was proceeding with in support of the rival contentions, particularly, the respondent No. 2, in support of her application under Section 125 Cr.P.C has filed an affidavit in examination-in-chief being paper No. 18C PW1, as well as paper No. 18 (ka5), that is the salary bill, the marriage certificate and other photographs in relation to the matrimony which was solemnized between the revisionist and respondent No. 2 on 26th August 2009. Whereas, on the contrary, the revisionist (husband) after putting an appearance in the proceedings under Section 125 CrPC, has also produced himself in the witness box and apart from it, he has also filed an affidavit of examination in chief by way of paper No. 55 (Ka) DW1 wherein he has contended that since the act of desertion was at the behest of respondent No. 2, she would not be entitled for the payment of any maintenance which she has claimed in her application as filed by her under Section 125 CrPC.

In support of the financial viability of respondent No. 2 (wife), the revisionist-husband has submitted that as per the list of documents which were produced by way of paper No. 49 (kha1) which are the bank records, the insurance policies, the medical bills and the air tickets, the documents pertaining to the landed property which was purchased in the name of respondent No. 2 (wife), as well as other documents, which were the documents in relation to the land purchased by the revisionist-husband, that is, paper No. 56 (ka) 2/56 (kha 20).

The learned Family Court, Nainital, Camp Court Ramnagar, after considering the income, which was accruing to the revisionist-husband, which stood established by the salary bill, which was on record which itself projected that though according to respondent No. 2 (wife), the reflection which was portrayed by her with regard to the income which was accruing to the revisionist-husband was of about Rs. 19,00,000/- per annum was not a correct figure as in accordance with the salary bill, he has contended that his actually carrying the salary of about Rs. 90,000/- to 95,000/- and rest of the amount which was accruing to him as an income was being paid towards the bank loans which has incurred on account of the financial assistance taken by him for purchasing the land, as well as the residential property, in which respondent-wife were residing at the time when the dispute arose between them on 8th December 2016.

The learned Family Court, while considering the rival contentions, particularly the implications, which were flowing from the initiation of the proceedings under Section 9 of the Hindu Marriage Act, 1955, which was initiated at Bangalore, the main grievance of the respondent No. 2 (wife), was as against the act of revisionist-husband of the initiation of the proceedings, invoking the provisions of Section 13 of the Hindu Marriage Act, seeking dissolution of marriage by initiating the proceedings before the learned Family Court, situated in Delhi. What she wants to contend by the said argument is that, drawing of the proceedings for dissolution of marriage under Section 13 of the Hindu Marriage Act itself shows the inclination of the revisionist-husband that he never intended to continue with the matrimonial obligations and the initiations of the proceedings under Section 9 of the Hindu Marriage Act before the learned Family Court, Bangalore was nothing but a part of the exercises just to generate a ground for the purposes of substantiating his stand in the proceedings under Section 13 of the Hindu Marriage Act.

Another argument, which has been raised by the learned counsel for the respondent-wife is to the effect that so far the propriety of the impugned order, as passed by the learned Family Court on 26th April 2019, whereby the learned Family Court has determined the maintenance to be awarded @ Rs. 7000/- per month towards the respondent No. 2, Rs. 3000/- per month towards the daughter and Rs. 2500/- per month towards the son, in all, that is of total Rs. 12500/- per month. It was to meagre an amount, because looking to the income, which has been pleaded by respondent No. 2 (wife), she had contended that she would be entitled for a maintenance much more than what has been awarded by the learned Family Court and that is why, she has instituted the parallel proceedings by way of Criminal Revision No. 227 of 2019 seeking an enhancement in the maintenance as awarded by the impugned judgement dated 26th April 2019.

The learned Family Court, on appreciation of the statement, which has been recorded by respondent No. 2 in the proceedings before the learned Family Court to the effect that she has rather expressed her opinion in her statement recorded before Court below, pertaining to the doubtful integrity of the revisionist-husband and his mental bent of mind, and further that she was not in a position to discharge her matrimonial obligations any further with the revisionist-husband, the learned Family Court has held that this statement of the wife in itself would amount to a voluntarily desertion though on the other hand the revisionist-husband, who has already initiated the proceedings for restitution of conjugal rights, in which the notice was issued to respondent-wife, but she has not participated in the proceedings, which was ultimately resulting into initiation of the proceedings under Section 13 of the Hindu Marriage Act.

This Court is of the view that as far as whatsoever the implications would flow from the conclusions which is arrived at by the proceedings under Sections 9 and 13 of the Hindu Marriage Act, but that itself cannot be a ground for determination or the quantification of the maintenance to be awarded to respondent Nos. 2, 3 and 4 in the proceedings under Section 125 Cr.P.C., because in case, if the finding which has been recorded by the learned Family Court is taken into consideration, which is being argued by the learned counsel for the revisionist-husband was in a fashion as if the learned Family Court was dealing with the criminal case, hence much credence cannot be placed on those findings, thus recorded because as per the findings which is recorded in paras 23 and 25 of the said judgement, the learned Family Court has recorded that since the only reason for desertion at the behest of respondent No. 2, that itself hold that she would not be entitled for any maintenance, but the revisionist-husband has expressed a rational gesture before the Court in the proceedings under Section 125 CrPC wherein, he himself has projected that the application under Section 125 CrPC may not be rejected in totality on that ground itself that she since 8th December 2016 is not discharged her matrimonial obligations rather she has deserted the revisionist (husband) and rather he himself has voluntarily expressed that he is willing to part with the maintenance to be paid to respondent Nos. 2, 3 and 4 and thus the learned Family Court has recorded that in view of the manner in which the respondent No. 2 (wife), has carried herself in the matrimonial relationship, the learned Family Court drew an inference that she would not be entitled for any maintenance but in view of the gratuitous aptitude, which was extended by the revisionist-husband, the learned Family Court, despite of having drawn a conclusion that since there was a bleak possibility of sustaining the relationship of the matrimony, the learned Family Court has, despite of the reasoning, which has been assigned in the order has drawn an inference that the application under Section 125 of Cr.P.C. deserves to be rejected, because, it was a voluntary desertion by the wife herself, but still the learned Family Court considering the expression given by the revisionist-husband has determined the maintenance, which was payable in total @ of Rs. 12500/- per month in all, to respondent Nos. 2, 3 and 4. Paras 23 and 25 of the said judgement read as under:-

"23. इस प्रकार वर्तमान परिस्थितियों में एक मात्र कारण को छोड़कर ऐसा कोई कारण नहीं है कि प्रार्थिनी का प्रार्थनापत्र खारिज न किया जाए। प्रार्थीगण का यह प्रार्थनापत्र खारिज किये जाने योग्य है। लेकिन वह एक मात्र यह है कि विपक्षी स्वयं अपने परिवार को भरण पोषण धनराशि देने के लिए तैयार है। प्रार्थीगण को भरण पोषण देने के विषय में विपक्षी का यह कथन है कि उसकी वर्तमान परिस्थितियों को देखते हुए न्यायालय द्वारा नियत धनराशि का भुगतान करने में समर्थ नहीं है।

न्यायालय की राय में वाद के तथ्यों एवं परिस्थितियों के परिपेक्ष्य में प्रार्थीगण किसी भी भरण पोषण की धनराशि प्राप्त करने के अधिकारी नहीं है।''

Considering the findings and the reasoning which has been assigned by the learned Family Court, this Court is of the view that the determination of the maintenance as made by impugned judgement dated 26th April 2019, though still could be subject to its re-appreciation at a subsequent stage under the provisions as contained under Section 127, but as far as the determination, which has been arrived at by the impugned order 26th April 2019, it has been rationally inferred after taking into consideration the evidence pertaining to the carry home salary of the revisionist-husband and also the evidence pertaining to the remittance of the instalments, in relation to the property, which admittedly was purchased by the revisionist-husband in the name of respondent No. 2 herself.

Since the part of financial liability pertaining to the EMIs payable towards the immovable property, which was purchased in the name of respondent No. 2 (wife), the amount of maintenance of Rs. 12500/- per month would be treated to be in addition to the EMIs/instalments, which was being met and paid by the revisionist-husband, thus this Court is of the view that the inference drawn by the learned Family Court in view of the findings recorded in paras 23 and 25 cannot be faulted with. However, this determination, which has been affirmed by today's judgement, may not be construed to create any impediment in future for its revision at the behest of respondent No. 2, by invoking an appropriate proceeding under Section 127 Cr.P.C.

In view of the reasons, which have been assigned above, this Court is not inclined to interfere with the impugned order dated 26th April 2019, under challenge in the revisions, which has been preferred by the revisionist-husband on the ground, that since he himself has voluntarily extended an offer to not to reject the application filed under Section 125 of Cr.P.C., and rather he was willing to part with the maintenance to respondent No. 2, hence, in such an eventuality, where he himself has expressed a goodwill gesture before the Court to meet with the maintenance liability of the respondent Nos. 2, 3 and 4, he ought not to have challenged the impugned order dated 26th April 2019, whereby the maintenance has been fixed to Rs. 12500/- per month in all for the respondent Nos. 2, 3 and 4, when he himself has voluntarily expressed that he was willing to maintain the children and respondent No. 2. Consequently, the revision, at the behest of the revisionist-husband that is revision No. 361 of 2019, lacks merit and is accordingly dismissed. Because it was a solicited judgement at the behest of the revisionist-husband.

Coming back to the revision, which has been preferred by the revisionist-wife that is Criminal Revision No. 277 of 2019, the contention though has been mostly dealt with in the preceding part of today's judgement, rendered in the connected Criminal Revision No. 361 of 2019, the enhancement has been sought with regards to the amount of maintenance which has been determined by the learned Family Court vide its order dated 29th June 2018, on the pretext that, when the application filed under sub Section (2) of Section 125 of Cr.P.C., was being considered by the learned Family Court at the stage of grant of interim maintenance by an order dated 29th June 2018, since the Family Court has fixed the maintenance @ Rs. 21,000/- per month and it was never challenged by respondent-husband, in such an eventuality, the final determination of maintenance, as awarded by the learned Family Court while deciding the application under Section 125 Cr.PC on its own merit, cannot be reduced to the amount than what was directed to be paid by way of interim maintenance during the pendency of Section 125 Cr.PC.

This argument of the learned counsel for the revisionist of Revision No. 277 of 2019 cannot be accepted for the reason that any arrangement, which is being made by the learned Family Court for the grant of interim maintenance during the pendency of consideration of the main proceedings cannot be quoted as a foundation or basis for the purposes of final determination of maintenance, which has to be arrived at by the Family Court on an appreciation of the entire evidence and material, pleadings, on its own merits and particularly whether under the present circumstances of a particular case, the applicant to the application under Section 125 Cr.PC was held out that was not at all entitled for any maintenance or not? Since the learned Family Court has already recorded a finding and particularly, in the light of the statement, which was recorded by respondent No. 2 (wife), that she is not willing to discharge her matrimonial obligations by continuing with the matrimonial relationship anymore, that in itself would amount to that it was a voluntary desertion at the behest of respondent No. 2 (wife), taken by the revisionist of the Criminal Revision No. 277 of 2019, for denying to discharge her matrimonial obligations and that itself would be a sufficient ground to deny any maintenance to her under the provisions of Section 125 Cr.PC.

But, since the Family Court was considering the goodwill gesture, as extended by the husband, has computed the maintenance @ Rs. 12500/- per month, which cannot be faulted with for the reason that in accordance with the backdrop under which the claim under Section 125 of Cr.P.C. was raised, that was not substantiated by the revisionist-wife of the revision No. 277 of 2019, by showing it otherwise that the respondent-husband was not meeting his part of her financial liability by paying the EMIs towards the property which he has purchased in her name and still continued to be recorded in her name, this Court is of the view that the argument of the learned counsel for the revisionist (wife) that the impugned order dated 26th April 2019, cannot be sustained because the learned Family Court has proceeded to decide the application under Section 125 CrPC, as if it was deciding the proceedings which is of a criminal nature, that will have no bearing as far as the adjudication on merit of the application under Section 125 Cr.PC is concerned.

Thus, in that view of the matter, without prejudicing the rights of the respondent No. 2 to seek an appropriate invocation of remedy under Section 127 CrPC in the coming future, this Court is not inclined to interfere in the revision for enhancement of the amount, as determined by the learned Family Court. Accordingly, the revision being Revision No. 277 of 2019 is hereby dismissed. Any findings, as recorded by this Court in support of the reasoning given in the today's judgement will not be extracted for the purposes of any collateral proceedings which is being drawn between the parties under any provisions of the law.