Subhash Chandra Singh Bisht vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

When this revision was entertained by this court, by way of an interim measure the Coordinate Bench of this Court on 18.01.2019 had stayed the effect and operation of the impugned order under challenge on the ground that subject to the condition that the revisionist pays a sum of Rs. 1,750/- per month to his wife and Rs. 2,250/- to his son, the effect and operation of the impugned judgment shall be kept in abeyance.

Later on when the matter was taken up an expression was given and also argued by the learned counsel for the parties is that in view of the stand taken by the revisionist in the proceedings under Section 125 of Cr.P.C. and also the stand, which has been taken by him in the proceedings under Section 13 of the Hindu Marriage Act for dissolution of marriage, he has submitted that he would revive back the matrimonial relationship and he has also expressed that he is willing to bear the expenditures for maintenance of the wife and the child, provided they reside with him and discharge their matrimonial and domestic obligation. On that premise, the parties were called upon to appear in person before this court.

The parties to the proceedings are present before this Court. The revisionist (husband), who has otherwise taken a different stand in the proceedings under Section 13 of the Hindu Marriage Act for dissolution of marriage, has now taken a completely somersaulted stand that, he is not willing to discharge his matrimonial obligation or to revive the matrimonial relationship. The statement, which he has given in the proceeding under Section 13, as well as, in the proceedings under Section 125 of Cr.P.C., and on the scrutiny of the impugned order dated 12.11.2018 under challenge and as rendered by the Family Court, Kotdwar, Pauri Garhwal, which was registered as Miscellaneous Case No. 79 of 2016 'Smt. Savita vs. Shri Subhash', the court has recorded a finding to the effect that as per the pleading raised by the respondent (wife), which has been shown, apart from the fact that the matrimony of 03.11.2008 is admitted by the parties and further the respondent (wife) has come up with the case that the revisionist is working as an Electrical Engineer and is having an income of about Rs. 25,000/- per month. On the contrary she has contended in the pleading under Section 125 of Cr.P.C. that she is a housewife and is not having any independent source of earning.

In response by way of objection to the proceedings under Section 125 of Cr.P.C., the objection was filed by the revisionist to the effect that in case if the wife and the children started residing with him and discharge their matrimonial obligations, he is willing to maintain them and the said defense was also taken by him in his objection filed to the Section 125 Cr.P.C. by way of an application dated 06.07.2017.

Based on the aforesaid premise and the evidence adduced by the parties and particularly if we consider the statement as recorded by the revisionist before the court below, and the documents as produced by way of list 31 kha and the oral evidence, which was adduced by PW1, i.e. the revisionist herein, the Family Court has framed the issues as to whether there was any justifiable reasons for the parties to the matrimony to live separately and as to whether the respondent (wife) was in a position to maintain herself in the absence of the subsistence provided by the revisionist.

The learned Family Court after considering the rival pleadings had partially allowed the maintenance application by the impugned judgment dated 12.11.2018 thereby determining the maintenance to be payable by the revisionist to the tune of Rs. 3,500/-to the wife and Rs. 4,500/- to the son, i.e. the total amount as determined to be payable by him was Rs. 8,000/-, which is challenged in the present revision, which has been filed before this Court, the revisionist (husband) has placed on record the salary slip issued by his employer in relation to the month of October, 2018, wherein, he has shown to be working on the post as an IT Executive, and the salary slip shows that he is drawing a salary of Rs. 5,000/-.

This Court is not willing to accept the propriety of the said salary slip because it had been issued in October, 2018, i.e. much after the institution of the proceedings under Section 125 of Cr.P.C. by the respondent (wife) on 19.08.2016. Further more, the bank statement, which he has placed on record in order to fortify his stand taken that he was drawing a salary of Rs. 5,000/- pertaining to the period from 01.11.2018 to 22.11.2018, this account statement further is not accepted by this court for the reason being that it is depicting income accruing to the revisionist for the period after the institution of the proceedings under Section 125 of Cr.P.C.

Apart from it, as far as the revisionist is concerned, few facts, which stand admitted, are that:

(i) There exists a subsisting marriage between him and the respondent.

(ii) He admits that the marriage so far has not been legally dissolved by the competent court.

(iii) He admits that out of the matrimony a son was born, who is presently of 10 years of age.

(iv) He admits that in the defense in the proceedings under Section 125 of Cr.P.C., he has expressed his willingness to maintain the wife and the son in an event they reside together.

(v) Even in the proceedings under Section 13, which is pending consideration and is yet to be decided on merit. He has yet again submitted that he is willing to discharge the matrimonial obligations.

When he was called upon before this Court to appear in person so that an effort may be made to revive the matrimonial relationship, then he has stated that on account of the atrocity, which has been said to have been committed by the respondent (wife), he is not in a position to revive back the matrimony. He further submits that as per his pleadings raised before the court below, he has come up with the case that as far as the respondent (wife) is concerned, she is a qualified lady and hence, she can profitably engage herself, but the fact remains that the said plea also cannot be accepted that merely because the respondent (wife) is qualified that in it does not itself means that she is profitably engaged and even that is not the case of the revisionist in any of the proceedings before the court below or even before this court that she is engaged somewhere and is having an independent income .

In that view of the matter considering the opportunist stand of revisionist, the determination of the maintenance as made by the Family Court by the impugned order under challenge determining the maintenance payable to the tune of Rs. 8,000/-, this Court is of the view that after having considered the evidence, which was adduced before the court below with regard to the income accruing to the revisionist, which was proved by evidence on record, the court has rightly determined the maintenance as to be a sum of Rs. 8,000/-, which has been made payable as a consolidated amount of maintenance towards the wife and son to meet the bare necessities of their routine life.

Even otherwise also, I am of the view that looking to the present era of inflation, the amount thus paid by the Family Court directing the revisionist for the payment of Rs. 3,500/- per month to the wife and Rs. 4,500/- per month to the son it is practically impossible for an individual to bear expenses of sustaining themselves and, hence, the amount thus determined is held to be just and proper and particularly in the absence of there being any contrary evidence adduced by the revisionist to show that the wife is profitably engaged in some other profession or she is having any income.

In that view of the matter, this Court is not inclined to exercise the revisional jurisdiction in entertaining the revision as against the impugned order.

Consequently, the revision lacks merit and the same is, accordingly, dismissed, and the impugned order of determining the maintenance as provided therein is maintained.