Criminal Case No. 142 of 2017 · High Court

Heard learned counsel for the revisionist, learned counsel for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record. The factual matrix of the case as culled out from the material on record are that applicant Smt. Shakuntala initially filed an application under Section 125 Cr.P.C. at Family Court, Agra as Case No.211 of 1997 against opposite party with averment that marriage of the opposite party was solemnized at 07.12.1996 at Kishorpura at Agra. Although there was no demand of dowry at the time of marriage from the side of the opposite party, yet the parents of the applicants paid sufficient cash and valuables in the marriage to opposite party. The applicant resided at the place of her in-law’s for a month, but the opposite party and his family members subsequently used to tease her and would say that her parents had given lessor amount of dowry and are started demanding Rs.5,000/- cash and a scooter as additional dowry. When she expressed inability of father to fulfill their demand of additional dowry, they started harassing him, she was deprived of clothes and meal she was kept starving . The opposite party and his family members used to threaten her in various ways and would exert pressure on her to bring the cash and scooter from her parents. They also threatened her that second marriage of opposite party will be solemnized, if their demand is not fulfilled. When her father took her back to his place, then matrimonial discord arose due to act of opposite party and his family members. The opposite party and his family members refused to take her back to the place unless demand of additional dowry is not fulfilled. The applicant had to take shelter on her parental home, as she was perturbed by continuous harassment and torture practiced by husband and his family members towards her. The applicant also stated that she had filed maintenance case in the year 1993, which was registered as Maintenance Case No.76 of 1993, under Section 125 Cr.P.C., in which opposite party appeared and filed his written statement, but on his assurance before the court that he will keep the applicant property and on filing of a compromise the said case was disposed of and opposite party took the applicant at his native village on 17.12.1994. The behaviour of opposite party and his family members was normal for sometime toward the applicant, but in course of time, they again revived their demand of dowry and started harassing her, they would give beating to her also. The applicant became pregnant in the meanwhile from opposite party, even then she was not kept properly and all sorts of mental and physical cruelty was practiced against her and ultimately opposite party left her in helpless condition. She gave birth to a daughter on

13.11.1995 and opposite party and his family members did not visit her to look a new born child, even after being informed by parents of the applicant. All the expenses of child birth were borne by the parents of the applicant. The opposite party never came to take her back thereafter to his place, even after much cajoling and pursuation made by the applicant and her parents. Applicant demanded Rs.1,000/- per months as maintenance for her and her minor daughter in said application under Section 125 Cr.P.C. Learned court below allowed the application under Section 125 Cr.P.C. vide judgment and order dated 11.08.1998 and awarded maintenance at the rate of Rs.500/- per month to the applicant and Rs.3,00/- per month to her minor daughter from the date of filing of application dated 25.04.1997. The applicant filed an application under Section 127 Cr.P.C. for enhancement of quantum of maintenance vide judgment and order dated 11.08.1998 under Section 125 Cr.P.C. vide application dated

01.06.2017, wherein she stated that at the time of award of maintenance under Section 125 Cr.P. C. vide judgment and order dated 11.08.1998 there was an outer limit of Rs.500/- for award of maintenance to wife/children, but now the law has changed and the upper limit has been removed after amendment under Section 125 Cr.P.C. She has also stated in the said application under Section 127 Cr.P.C. that opposite party operates flour mill, one speller, one paddy crushing machine, one grinder for grinding spices and agency of salty snacks. He also cultivates potatoes in agricultural land, he has let out his two houses on rent by which he earns sufficiently. The opposite party earns around Rs.2 lakh per month from all sources of income; on the other hand she is not having any source of income on her own, she is less educated lady and she is unable to maintain herself. She has become burden on her own parents, she has to maintain marriageable daughter also. Opposite party has contracted second marriage without giving divorce to her and three children born to opposite party, out of his second marriage. Learned court below after considering the financial need of the applicant, and considering the evidence adduced during hearing of the case. The maintenance awarded in earlier judgment Rs.500/- per month has been enhanced to Rs.5,000/- per month from the date of filing of application under Section 127 Cr.P.C. Learned counsel for the revisionist submits that revisionist works in a flour mill and speller installed by his brother, he possesses a small chunk of agricultural land. He is not able to pay Rs.5,000/- per month as maintenance to the applicant, the court below has enhanced the maintenance from Rs.500/- per month to Rs.5,0000/- per month without considering the source of income of the revisionist. There is no documentary proof of the source of income of the revisionist, only ¼ bigha land lies in his name. The impugned order is based on conjecture and surmises and liable to be set-aside. He further submitted that he has been paying maintenance in earlier order under Section 125 Cr.P.C. to the applicant. The daughter of the applicant and revisionist is now become major and she is not entitled to seek maintenance. The court below failed to consider the objection filed by the revisionist in proceedings under Section 127 Cr.P.C. Per contra, learned counsel for the respondent No.2 submitted that learned court below has considered the source of income of the revisionist at length in the impugned order and has rightly observed that opposite party has admitted in his cross examination that dearness has increased since 1998, but he has stated that his earning has not increased, he has stated himself as law graduate, but shows that he is a labourer and he has not get himself registered as Advocate, even an ordinary labourer earns around Rs.300/- to Rs.400/- per day; he has also admitted that he has agricultural land and he drives income also from agricultural land, and therefore, he is able to maintain himself and his family. He had not filed any material in support of his contention that applicant is possessed of independent income, the applicant has stated herself as a home maker, from which it is obvious that she has no income of her own as she is able to maintain herself. Learned counsel further submitted that the revisionist has admitted in cross-examination that his father has distributed his agricultural land between applicant opposite party and his brother, and he has obtained his share from the paternal land also. The amount awarded in the impugned judgment and order is very reasonable and no interference is warranted in the present revision. Considering the rival submissions of the learned counsel for the parties and perused the material available on record as well as after giving a thoughtful consideration of the evidence and pleadings of the parties adduced during hearing and impugned judgment. This court is of the considered opinion that there is no substantial, factual or legal error in the impugned judgment, so far as the quantum of maintenance awarded in impugned judgment and order, however so far as arrear of maintenance from date of application to date of judgment is concerned that requires some modification. Keeping in view the facts and circumstances of the cases, and also the fact that there is no exact proof of income of the revisionist and same is a matter of estimation based on means of his earning shown by the applicant and some admission made by the revisionist himself. Therefore, it is directed that revisionist will pay Rs. 3,000/- per month from the date fo filing of application to date of judgment to the applicant as maintenance, and continued to pay Rs.5000/- per month as maintenance from the date of impugned judgment and order. The impugned order stands modified accordingly. The revision stands partly allowed. It is also directed that the arrear at the rate of Rs.3,000/- from the date of filing to application to date of impugned judgment shall be paid within five equal monthly installments, and first installment will be payable since February, 20205. Apart from that revisionist will continued to pay Rs.5,000/- per month maintenance as awarded in the impugned judgment from the date of judgment onwards. Any infraction in compliance of this modified order will entail issuance of coercive process by the court below against the revisionist. Any amount paid or deposited by the revisionist towards impugned order shall be liable to adjustment, in this modification towards arrears of maintenance as directed in the judgment. Order Date :- 21.1.2025 Ashish/-

Heard learned counsel for the revisionist, learned counsel for the respondent No.2 and learned A.G.A. for the State-respondent and perused the material available on record. The factual matrix of the case as culled out from the material on record are that applicant Smt. Shakuntala initially filed an application under Section 125 Cr.P.C. at Family Court, Agra as Case No.211 of 1997 against opposite party with averment that marriage of the opposite party was solemnized at 07.12.1996 at Kishorpura at Agra. Although there was no demand of dowry at the time of marriage from the side of the opposite party, yet the parents of the applicants paid sufficient cash and valuables in the marriage to opposite party. The applicant resided at the place of her in-law’s for a month, but the opposite party and his family members subsequently used to tease her and would say that her parents had given lessor amount of dowry and are started demanding Rs.5,000/- cash and a scooter as additional dowry. When she expressed inability of father to fulfill their demand of additional dowry, they started harassing him, she was deprived of clothes and meal she was kept starving . The opposite party and his family members used to threaten her in various ways and would exert pressure on her to bring the cash and scooter from her parents. They also threatened her that second marriage of opposite party will be solemnized, if their demand is not fulfilled. When her father took her back to his place, then matrimonial discord arose due to act of opposite party and his family members. The opposite party and his family members refused to take her back to the place unless demand of additional dowry is not fulfilled. The applicant had to take shelter on her parental home, as she was perturbed by continuous harassment and torture practiced by husband and his family members towards her. The applicant also stated that she had filed maintenance case in the year 1993, which was registered as Maintenance Case No.76 of 1993, under Section 125 Cr.P.C., in which opposite party appeared and filed his written statement, but on his assurance before the court that he will keep the applicant property and on filing of a compromise the said case was disposed of and opposite party took the applicant at his native village on 17.12.1994. The behaviour of opposite party and his family members was normal for sometime toward the applicant, but in course of time, they again revived their demand of dowry and started harassing her, they would give beating to her also. The applicant became pregnant in the meanwhile from opposite party, even then she was not kept properly and all sorts of mental and physical cruelty was practiced against her and ultimately opposite party left her in helpless condition. She gave birth to a daughter on

13.11.1995 and opposite party and his family members did not visit her to look a new born child, even after being informed by parents of the applicant. All the expenses of child birth were borne by the parents of the applicant. The opposite party never came to take her back thereafter to his place, even after much cajoling and pursuation made by the applicant and her parents. Applicant demanded Rs.1,000/- per months as maintenance for her and her minor daughter in said application under Section 125 Cr.P.C. Learned court below allowed the application under Section 125 Cr.P.C. vide judgment and order dated 11.08.1998 and awarded maintenance at the rate of Rs.500/- per month to the applicant and Rs.3,00/- per month to her minor daughter from the date of filing of application dated 25.04.1997. The applicant filed an application under Section 127 Cr.P.C. for enhancement of quantum of maintenance vide judgment and order dated 11.08.1998 under Section 125 Cr.P.C. vide application dated

01.06.2017, wherein she stated that at the time of award of maintenance under Section 125 Cr.P. C. vide judgment and order dated 11.08.1998 there was an outer limit of Rs.500/- for award of maintenance to wife/children, but now the law has changed and the upper limit has been removed after amendment under Section 125 Cr.P.C. She has also stated in the said application under Section 127 Cr.P.C. that opposite party operates flour mill, one speller, one paddy crushing machine, one grinder for grinding spices and agency of salty snacks. He also cultivates potatoes in agricultural land, he has let out his two houses on rent by which he earns sufficiently. The opposite party earns around Rs.2 lakh per month from all sources of income; on the other hand she is not having any source of income on her own, she is less educated lady and she is unable to maintain herself. She has become burden on her own parents, she has to maintain marriageable daughter also. Opposite party has contracted second marriage without giving divorce to her and three children born to opposite party, out of his second marriage. Learned court below after considering the financial need of the applicant, and considering the evidence adduced during hearing of the case. The maintenance awarded in earlier judgment Rs.500/- per month has been enhanced to Rs.5,000/- per month from the date of filing of application under Section 127 Cr.P.C. Learned counsel for the revisionist submits that revisionist works in a flour mill and speller installed by his brother, he possesses a small chunk of agricultural land. He is not able to pay Rs.5,000/- per month as maintenance to the applicant, the court below has enhanced the maintenance from Rs.500/- per month to Rs.5,0000/- per month without considering the source of income of the revisionist. There is no documentary proof of the source of income of the revisionist, only ¼ bigha land lies in his name. The impugned order is based on conjecture and surmises and liable to be set-aside. He further submitted that he has been paying maintenance in earlier order under Section 125 Cr.P.C. to the applicant. The daughter of the applicant and revisionist is now become major and she is not entitled to seek maintenance. The court below failed to consider the objection filed by the revisionist in proceedings under Section 127 Cr.P.C. Per contra, learned counsel for the respondent No.2 submitted that learned court below has considered the source of income of the revisionist at length in the impugned order and has rightly observed that opposite party has admitted in his cross examination that dearness has increased since 1998, but he has stated that his earning has not increased, he has stated himself as law graduate, but shows that he is a labourer and he has not get himself registered as Advocate, even an ordinary labourer earns around Rs.300/- to Rs.400/- per day; he has also admitted that he has agricultural land and he drives income also from agricultural land, and therefore, he is able to maintain himself and his family. He had not filed any material in support of his contention that applicant is possessed of independent income, the applicant has stated herself as a home maker, from which it is obvious that she has no income of her own as she is able to maintain herself. Learned counsel further submitted that the revisionist has admitted in cross-examination that his father has distributed his agricultural land between applicant opposite party and his brother, and he has obtained his share from the paternal land also. The amount awarded in the impugned judgment and order is very reasonable and no interference is warranted in the present revision. Considering the rival submissions of the learned counsel for the parties and perused the material available on record as well as after giving a thoughtful consideration of the evidence and pleadings of the parties adduced during hearing and impugned judgment. This court is of the considered opinion that there is no substantial, factual or legal error in the impugned judgment, so far as the quantum of maintenance awarded in impugned judgment and order, however so far as arrear of maintenance from date of application to date of judgment is concerned that requires some modification. Keeping in view the facts and circumstances of the cases, and also the fact that there is no exact proof of income of the revisionist and same is a matter of estimation based on means of his earning shown by the applicant and some admission made by the revisionist himself. Therefore, it is directed that revisionist will pay Rs. 3,000/- per month from the date fo filing of application to date of judgment to the applicant as maintenance, and continued to pay Rs.5000/- per month as maintenance from the date of impugned judgment and order. The impugned order stands modified accordingly. The revision stands partly allowed. It is also directed that the arrear at the rate of Rs.3,000/- from the date of filing to application to date of impugned judgment shall be paid within five equal monthly installments, and first installment will be payable since February, 20205. Apart from that revisionist will continued to pay Rs.5,000/- per month maintenance as awarded in the impugned judgment from the date of judgment onwards. Any infraction in compliance of this modified order will entail issuance of coercive process by the court below against the revisionist. Any amount paid or deposited by the revisionist towards impugned order shall be liable to adjustment, in this modification towards arrears of maintenance as directed in the judgment. Order Date :- 21.1.2025 Ashish/-