Harveer Singh vs State of U.P. and Others

Subhash Chandra Agarwal, J.—This criminal revision u/s 397/401 of the Code of Criminal Procedure is directed against the judgment and order dated 15.6.2010 passed by the Judge, Family Court, Agra, in Case No. 611 of 2008, Smt. Asha Singh and Ors. v. Harveer Singh, u/s 125 Code of Criminal Procedure P.S. Sikandra, District- Agra, whereby the revisionist Harveer Singh was directed to pay maintenance allowance u/s 125 Code of Criminal Procedure at the rate of Rs. 5000/- per month to his wife Smt. Asha Singh, opposite party No. 2 and at the rate of Rs. 3000/- per month to his minor daughter Km. Tanvi Singh opposite party No. 3 with effect from the date of judgment i.e. 15.6.2010.

On 4th August, 2010, when the application for interim stay was pressed by learned Counsel for the revisionist, this Court passed the following orders:

Learned Counsel for the parties are present.

Counter affidavit be filed within four weeks. Rejoinder affidavit may be filed within a week thereafter.

List on 22nd September, 2010.

Till the next date of listing, operation of impugned order dated 15.6.2010 shall remain stayed provided the revisionist deposits the entire arrears of maintenance allowance @ of Rs. 4000/- per month to the wife and 2000/- per month to the daughter as directed by the Family Court within a period of four weeks from today and shall continue to deposit the maintenance allowance at the same rate in future by 7th of every month. In case of default in payment, the stay order shall automatically stands vacated.

The revisionist, dissatisfied with the interim order passed by this Court on 4.8.2010 approached the Apex Court by means of Special Leave to Appeal (Crl.) No. 7217 of 2010, which was disposed of by the Apex Court with the following order:

The SLP has been filed against the impugned interim order dated 4.8.2010 passed by the High Court of Judicature at Allahabad in Criminal Revision No. 2524 of 2010 which is coming up before the High Court on 22nd September, 2010.

Since the matter is coming up before the High Court on 22nd September, 2010, this is not a fit case for interference under Article 136 of the Constitution. The SLP is dismissed accordingly.

However, we request the High Court to decide the case on the date fixed after hearing the parties concerned and not adjourn it.

The facts are that application u/s 125 Code of Criminal Procedure was filed by opposite party Nos. 2 and 3 against the revisionist with the allegations that opposite party No. 2 was married to the revisionist on 1.12.2002 and the sum of Rs. 11.5 lacs through bank drafts besides furniture, domestic goods and ornaments were given to the husband and his family members. On account of not given a car in the marriage, the husband and his family members started maltreating and harassing the wife. In the meantime, Smt. Asha Singh became pregnant. When the husband came to know that his wife is carrying a female child in her womb, he pressurized her for an abortion, which was refused by her. On this account, she was beaten by the revisionist on 26.7.2004. She sustained injuries and was admitted to Military Hospital by her husband and his family members. On 17.10.2004, a daughter (opposite party No. 3) was born. The behaviour of revisionist and his family members became harsher and they tried to get rid of Smt. Asha Singh. The brother of Smt. Asha Singh and his co-workers were also shot at. When the parents of Smt. Asha Singh came to the hospital to see their daughter, they were also fired at by the husband. In that incident two military personnel were injured. It was alleged in the application that Smt. Asha Singh was a burden on her brother. She had no means of livelihood and was unable to maintain herself and her minor daughter. Her minor daughter was studying in Saint Cornet School and her monthly fee was about 2000/- per month. Due to maltreatment of Smt. Asha Singh by her in-laws, the minor daughter was suffering from respiratory illness and had been hospitalized many times.

It was further alleged in the application that her husband was working as Flight Lt. in the Air Force and at present was a Manager in the Reliance Company, is a MBA and is earning about 1.25 lacs per month. It was claimed that Smt. Asha Singh and her daughter were entitled to live with the same standard of life as enjoyed by the revisionist. The opposite party Nos. 2 and 3 claimed maintenance allowance at the rate of Rs. 10,000/- per month and 5000/- per month respectively.

The revisionist Harveer Singh filed a written statement before the Family Court stating therein that his marriage took place without any exchange of dowry. It was admitted in para 1 of the written statement that his father had taken a sum of Rs. 11.5 lacs from the father of Asha Singh before marriage as loan for construction of a new house and this money transaction has been shown as dowry. It was further alleged that Smt. Asha Singh was a characterless lady. She was never harassed by him or his family members and she left the house of her husband voluntarily. He filed petition for divorce in the Family Court, Agra, which is pending. He did not know that his wife was carrying a female child. He never pressurized his wife for abortion. His wife suffered stomach pain and was admitted at Military Hospital. She was living at her parents'' house since 26.7.2004. It was also alleged in the written statement that his wife was a post-graduate in chemistry and was teaching in her father''s educational institution, Roshan Lal Institute, Runakta situated at Delhi Highway and was earning Rs. 20,000/- per month, which was sufficient for the maintenance of his wife and daughter. It was further claimed that he is unemployed and is unable to pay any amount as maintenance. Earlier he was employed in the air force but at present he is studying in MBA.

Before the Family Court, opposite party No. 2- Smt. Asha Singh examined herself as P.W.-1 and filed documents. Despite sufficient opportunity being given, the revisionist Harveer Singh, who was opposite party in the proceedings before the Family Court, did not lead any oral evidence and remained absent at the time of hearing.

Learned Principal Judge, Family Court came to the conclusion that Smt Asha Singh and her daughter had no means of livelihood and were unable to maintain themselves and Harveer Singh was liable to pay maintenance to them. Consequently, the application u/s 125 Code of Criminal Procedure was allowed and the revisionist was directed to pay maintenance allowance to opposite party Nos. 2 and 3 as stated above. Hence this revision.

On 22.9.2010, I have heard arguments of Sri Raghubir Singh, learned Counsel for the revisionist, learned AGA for the State and Sri. A.B.L. Gaur, Senior Advocate assisted by Sri Saurabh Gaur, learned Counsel for opposite party Nos. 2 and 3 and judgment was reserved.

Counter affidavit has been filed on behalf of opposite parties No. 2 and 3. However, no rejoinder affidavit has been filed on behalf of the revisionist. Supplementary affidavit was filed by learned Counsel for the revisionist annexing therewith copy of order of the Apex Court quoted above and some orders relating to proceedings under Protection of Woman from Domestic Violence Act, 2005.

Sri Raghubir Singh, learned Counsel for the revisionist submitted that the impugned order is illegal and has been passed by learned Principal Judge, Family Court without application of judicial mind. The revisionist is unemployed and has no source of income and is dependent upon his retired, old and infirm father. The learned Principal Judge, Family Court was not justified in awarding maintenance allowance at the rate of Rs. 5000/- per month to opposite party No. 2 and at the rate of Rs. 3000/- per month to opposite party No. 3. He however, admitted that the revisionist received a sum of Rs. 11.5 lacs from opposite party No. 2 but nothing was paid as dowry. The amount was taken as a loan for construction of a house. It was further contended that that opposite party No. 2 is an educated lady and is M. Sc. in Chemistry and is also doing teaching work in the B. Ed. College of her father and was receiving a salary of Rs. 20,000/- per month. It was also submitted that at present, the revisionist is studying in M.B.A. and is unemployed. It is contended that on account of false cases fostered by opposite party No. 2 and her parents, the revisionist was released from Air Force. The revisionist has also taken a loan of Rs. 11 lacs from the bank and due to non payment of certain instalments, the bank is going to auction his house.

Per contra, learned AGA and Sri A.B.L. Gaur, Senior Counsel for opposite party Nos. 2 and 3 supported the impugned judgment and submitted that the revisionist did not examine himself as a witness before the Family Court and thus the allegations made by him in the written statement filed before the Family court, remain unsubstantiated. It is contended that the judgment of the Family court is based on proper appreciation of evidence and does not require any interference by this Court.

Admittedly, the revisionist was earlier serving on a short service commission in the air force as Flight Lt. In the counter affidavit filed by Neeraj Singh, brother of opposite party No. 2, it has been mentioned that the revisionist is working in a Multi-national Company, Larsen and Turbo at Delhi, which is evident from the Internet Profile of the revisionist filed as annexure No. C.A.-1 and is getting a salary package of about Rs. 25 lacs per annum.

Before the Family Court, opposite party No. 2 stated on oath that she was being harassed by the revisionist and his family members on account of demand of dowry. A sum of Rs. 11.5 lacs was given to the revisionist through bank drafts. A daughter was born on 17th October, 2004. Before her birth, the revisionist and his family members came to know that she was carrying a female child in her womb and they pressurized her to undergo abortion. She was also beaten by her husband. She was admitted in Military Hospital. When her brother and others came to meet her, they were shot at by her husband resulting in injuries to military personnel present in the hospital. Since 27th July, 2004 she is living with her father and is not employed anywhere and has no income. She has denied the suggestion that she was getting a salary of Rs. 20,000/- per month.

he revisionist did not examine himself in evidence despite opportunity being given by the trial court. On the basis of evidence on record, learned Principal Judge, Family court came to the conclusion that opposite party Nos. 2 and 3 were unable to maintain themselves and the revisionist failed to provide them any financial support. This finding is based on proper appreciation of evidence and I do not find any illegality or perversity in the said finding. The wife also stated before the trial court in her statement that her husband was serving at Bombay earning about one lac per month and he took V.R.S. from the Air Force. Her husband always travels by air. Her statement has not been controverter by the revisionist by examining himself. If the revisionist was unemployed and was not earning anything, he could have deposed these facts before the Family court but he has chosen to abstain from entering the witness-box. In these circumstances, the contention of the revisionist that the revisionist is unemployed and is unable to provide maintenance to his wife and child cannot be accepted.

Annexure No. P-8 to the affidavit filed in support of the revision shows that the revisionist was released from Indian Air Force by order dated 19th February, 2007 on completion of initial tenure of S.S.C. Officers. Therefore, the contention that he was released from service on account of criminal cases against him is false. The revisionist admits that he is studying in M.B.A. after release from service. Instead of working anywhere, taking admission in the M.B.A. goes to show that he is not worried about his livelihood and is pursuing educational excellence.

In the counter affidavit filed by brother of opposite party No. 2, it was specifically alleged that the revisionist is serving in Multinational Company Larsen & Turbo. This fact has not been controverter by the revisionist by filing any rejoinder affidavit. Perhaps for this very reason, the revisionist did not examine himself in defence before the trial court.

This is an admitted fact that at the time of marriage, a sum of Rs. 11.5 lacs was received by revisionist from father of the opposite party No. 2, which he claims that it was not dowry but was taken as a loan but admittedly the said amount was never returned by him. Even if that amount is invested in fixed deposit in a bank, the same may provide about 90,000/- per annum as interest. The amount awarded to the opposite party Nos. 2 and 3 as maintenance allowance cannot be said to be excessive keeping in view the standard of living of the revisionist and the opposite party Nos. 2 and 3 and amount of Rs. 5000/- per month to the wife is fully justified. As far as opposite party No. 3 is concerned, she is studying. Her mother has deposed before the trial judge that about a sum of Rs. 2000/-per month is being spent on her education. Various receipts issued by the college were filed before the trial court. Thus a sum of Rs. 3000/- per month awarded to opposite party No. 2 as maintenance allowance is also justified.

Having considered rival submissions advanced by learned Counsel for the parties, this Court has come to the conclusion that findings recorded by learned Principal Judge, Family court that opposite party Nos. 2 and 3 are unable to maintain themselves and the revisionist has failed to provide the maintenance are fully justified and cannot be said to be perverse. Keeping in view the status of the revisionist, award of Rs. 5000/- per month to the wife and Rs. 3000/per month to the minor daughter as maintenance allowance cannot be said to be excessive or beyond means of the revisionist. The revisionist has not replied to the allegations made in the counter affidavit that he is employed in L & T. The Internet Profile of revisionist also reveals that the revisionist is presenting himself on internet as Project Manager at L & T for New Delhi area.

In view of above, this Court is of the considered opinion that the contentions raised by learned Counsel for the revisionist have no substance. The impugned order does not suffer from any illegality or perversity. The impugned order is based on proper appreciation of evidence and does not require any interference by this Court.

The revision is devoid of merit and is accordingly dismissed.

Interim order dated 4th August, 2010 is vacated.