Nusrat vs State Of Uttarakhand & Another

Ashish Naithani, J

The present Criminal Revision has been preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973, read with Section 19 sub-section (4) of the Family Courts Act, assailing the judgment and order dated 19.01.2024 passed by the Judge, Family Court, Vikasnagar, District Dehradun, in Misc. Case No. 57 of 2022, whereby the application filed by the Revisionist under Section 125 CrPC seeking maintenance was rejected.

The marriage between the Revisionist and Respondent No. 2 was solemnised on 12.05.2012 according to Muslim rites and customs. From the wedlock, two children were born. It is the case of the Revisionist that she was subjected to cruelty and harassment after marriage and was ultimately compelled to leave the matrimonial home.

Alleging neglect and refusal on the part of Respondent No. 2 to maintain her, the Revisionist instituted proceedings under Section 125 CrPC before the Family Court, Vikasnagar, claiming monthly maintenance.

Respondent No. 2 contested the application and filed objections, disputing the allegations and asserting that the Revisionist was capable of maintaining herself. Affidavits of assets and liabilities were filed by both sides.

Upon consideration of the material on record, the Family Court, by the impugned order dated 19.01.2024, rejected the application under Section 125 CrPC, principally holding that the Revisionist was able to maintain herself and, therefore, was not entitled to maintenance.

Aggrieved by the said rejection, the Revisionist has approached this Court in revision.

Learned counsel for the Revisionist submitted that the Family Court committed a manifest error of law in rejecting the maintenance application on mere assumptions regarding the Revisionist’s alleged ability to maintain herself. It was argued that there was no reliable evidence on record to establish that the Revisionist had any regular or independent source of income.

Learned counsel contended that the Family Court wrongly treated the existence of agricultural land in the name of the parents of the Revisionist as indicative of her income, without examining whether the Revisionist had any control, share, or actual income therefrom.

It was further argued that the Family Court failed to apply the settled legal test governing Section 125 CrPC, namely that the question is not whether the wife can somehow survive, but whether she is able to maintain herself with dignity in a manner consistent with the status of the matrimonial home.

Learned counsel also urged that the Family Court did not undertake any meaningful comparative assessment of the financial capacity of Respondent No. 2 vis-à-vis the Revisionist, despite material indicating the earning capacity and financial dealings of Respondent No. 2 being available on record.

Per contra, learned counsel for Respondent No. 2 supported the impugned order and submitted that the Family Court, after appreciation of evidence, recorded a finding of fact that the Revisionist was able to maintain herself, which ought not to be interfered with in revision. It was argued that the scope of revisional jurisdiction is limited and does not permit re-appreciation of evidence.

Learned A.G.A. appearing for the State adopted a neutral stance and left the matter to the discretion of the Court.

This Court has considered the rival submissions and perused the entire record with care. It is well settled that the jurisdiction under Sections 397 and 401 CrPC is limited and does not ordinarily permit interference with concurrent findings of fact. However, where the finding is based on misapplication of legal principles, ignores relevant considerations, or is founded on assumptions rather than evidence, revisional interference is not only permissible but warranted.

Section 125 CrPC is a measure of social justice. The object of the provision is to prevent vagrancy and destitution by compelling those who can provide support to maintain those who are unable to maintain themselves. The expression “unable to maintain herself” does not mean that the wife must be reduced to penury or starvation before she can claim maintenance.

The settled position of law is that mere theoretical capacity to earn, or speculative assumptions regarding income, cannot be equated with actual ability to maintain oneself. The Court must be satisfied that the wife has a regular, dependable source of income sufficient to meet her basic needs and to live with dignity.

On a close reading of the impugned order, it becomes evident that the Family Court has proceeded on the premise that the Revisionist is able to maintain herself primarily on the basis of assumptions drawn from surrounding circumstances, rather than on concrete evidence of actual income.

The existence of agricultural land in the name of the parents of the Revisionist, without proof of the Revisionist’s ownership, control, or receipt of income therefrom, cannot be treated as proof of her independent means. There is no categorical finding that the Revisionist is employed, self-employed, or otherwise in receipt of regular income.

The Family Court has also failed to undertake a comparative assessment of the financial capacity of the husband and the wife. Section 125 CrPC requires consideration of not only the wife’s means, but also the means of the husband and the relative hardship between the parties. The inquiry cannot be truncated by focusing solely on the wife in isolation.

The approach adopted by the Family Court, in effect, shifts the burden onto the wife to demonstrate destitution, which is contrary to the spirit and object of Section 125 CrPC. The law does not require a wife to prove that she is absolutely helpless; it requires the Court to examine whether she is able to maintain herself reasonably and independently.

In the considered view of this Court, the finding recorded by the Family Court that the Revisionist is able to maintain herself is not supported by reliable evidence and reflects a misdirection in law. Such a finding, being based on conjectures rather than proof, cannot be sustained.

This Court is conscious of the limits of revisional jurisdiction and does not propose to conduct a roving inquiry or re-appreciate the entire evidence. However, where the foundational legal test under Section 125 CrPC has been incorrectly applied, interference becomes necessary to prevent miscarriage of justice.

Having regard to the material on record, the status of the parties, and the object of Section 125 CrPC, this Court is of the view that the Revisionist is entitled to maintenance. At the same time, the quantum must be reasonable, balanced, and commensurate with the circumstances of the parties.

In the facts of the present case, fixing maintenance at a moderate figure would adequately balance the interests of both sides and serve the ends of justice.

ORDER

The Criminal Revision is allowed.

The judgment and order dated 19.01.2024 passed by the Judge, Family Court, Vikasnagar, District Dehradun, in Misc. Case No. 57 of 2022, insofar as it rejects the application of the Revisionist under Section 125 CrPC, is set aside.

The Revisionist is held entitled to receive maintenance from Respondent No. 2.

Respondent No. 2 shall pay to the Revisionist a sum of Rs. 8,000 (Rupees Eight Thousand only) per month as maintenance. The said amount shall be payable from the date of this order.

The monthly maintenance shall be paid regularly by the 7th day of each succeeding month. The first instalment shall be paid within one month from today.