Devendra Kumar v. State of U.P.Thru. Addl

Heard Shri P.S. Bajpai, learned counsel for the applicant, Shri Vinay Kumar Shahi, learned AGA for the State as well as Shri Rajendra Prasad Sharma, learned counsel for the opposite party No.2 and perused the record.

The present application under Section 482 Cr.P.C. has been filed for the following main relief(s):- "Modify/reduce the monthly payment of maintenance of Rs.15000/- per month to respondent no. 2 considering the changed and compelling circumstances after the order of maintenance being passed by this Hon'ble Court in criminal revision no. 300/2020 revising the maintenance w.e.f. 08.10.2001 which is more than the salary of applicant as shown in the chart of this application as well as considering the resource of income and conduct of respondent no. 2 regarding misuse of process of court, restraining the courts of law from complying the repeated orders of this Hon'ble Court and creating pressure upon the Learned Family court to pass orders as per wishes of respondent no. 2. (ii) to restrain the Learned Family Court from initiating any recovery proceedings towards arrears of dues towards maintenance with effect from 8.10.2001 till the decision of Cr Revision No. 156/2025 preferred by applicant challenging the judgment and order dated 14.1.2020 passed by Learned Family Court awarding maintenance of Rs.3000/- in favour 2 APPLICATION U/S 482 No. - 6900 of 2025 of the respondent no.2 in which the respondent no. 2 has put her appearance. "

Brief facts of the case, as indicted by the learned counsel for the applicant namely Shri Prem Shanker Bajpai and Shri Rajendra Prasad Sharma, who appeared for the opposite party No.2, are as under :- (i) An application under Section 125 Cr.P.C. was filed by the opposite party No.2 on 08.10.2001, which was registered as Maintenance Case No.1018 of 2001 (Smt. Purnima Asthama and others Vs. Shri Devendra Kumar Srivastava). (ii) The aforesaid maintenance case was finally decided vide order dated 04.09.2009. The Family Court declined to award the maintenance to the opposite party No.2. The operative portion of the order dated

04.09.2009 is extracted herein under :- "वादि(cid:4)नी का प्रस्तुत वा(cid:4) आआंशि(cid:16)क रूप से स्वीकृत किकया जाता है। विवपक्षी को एतद्वारा आ(cid:4)ेशि(cid:16)त किकया जाता है किक वह प्रस्तुत बा(cid:4) 2 की मृत्यु दि(cid:4)० 8.10.2001 रु० 1500.00 संस्थिस्$त करने की तितथि$ दि(cid:4)० 25.03.08 तक का गुजारा भत्ता वा(cid:4)ी सं० से वा(cid:4)ी सं० 2 के बाबत प्रतितमाह की (cid:4)र से त$ा प्रस्तुत वा(cid:4) संस्थिस्$त करने की तितथि$

8.10.01 से दि(cid:4)सम्बर 3000.00 2007 तक 1000.00 रु० प्रतितमाह की (cid:4)र से वा(cid:4)ी संख्या रु० प्रतितमाह की (cid:4)र से व उसके बा(cid:4) , उक्त के 3 के बाबत संरक्षिक्षका मां के संरक्षण तक वादि(cid:4)नी को अपा करें। इससे अंतरिरम गुजारे भत्ते यो रूप में अ(cid:4)ा की गयी धनराशि(cid:16) यदि(cid:4) कोई हो तो समायोस्थिजत की जायेगी।" (iii) Being aggrieved by the order dated 04.09.2009, the opposite party No.2-Smt. Poornima Asthana W/o applicant Devendra Kumar Srivastava approached this Court by means of Case U/S 482/378/407 No.4422 of 2009 and this Court decided the said petition finally vide order dated

29.04.2019/08.05.2019 (the date of the correction of the order dated

29.04.2019). The order dated 29.04.2019 reads as under :- "Heard learned counsel for the parties. This petition under Section 482 CrPC has been filed against the order dated 4th September, 2009 passed by the Additional Principal Judge, Family Court, Lucknow in Criminal Case No.1018 of 2001 filed under Section 125 CrPC. 3 APPLICATION U/S 482 No. - 6900 of 2025 The Family Court, after considering the evidence and submissions of the parties, rejected the prayer for maintenance to wife i.e. the petitioner and awarded the maintenance to the children at an amount of Rs.3,000/- per month. Learned counsel for respondent states that the respondent (husband) gets salary in hand Rs.19,016/- per month, whereas the learned counsel for the petitioner, Mr. Rajendra Prasad Sharma states that if voluntary deductions are included, the salary of respondent comes to Rs.32,000/- and odd. Mr. Sharma further submits that the petitioner was forced to live away from her husband and she lodged six complaints before leaving the matrimonial home and, therefore, she is living separately.

Considering the fact that the Family Court has not adverted to the complaints given by the complainant, i.e. wife of the petitioner, before leaving the matrimonial home, the matter is remitted back to the Family Court, Lucknow to decide the same afresh in accordance with law, after considering the evidence led by the parties within four months from the date certified copy of this order is produced. However, the respondent shall continue to give maintenance to the children till the application moved by the petitioner under Section 127 CrPC for modification/enhancement of the interim maintenance is decided. With the aforesaid observations/directions, the petition is disposed of. " (iv) In terms of the order of this Court dated 29.04.2019, referred above, the Family Court considered the grievance of the opposite party No.2 as also the facts of the case including the date of marriage, place of the residence, post on which the applicant was/is working i.e. the post of clerk in the department of Animal Husbandry, U.P. and his undisputed salary, as also that under the compelling circumstances the opposite party No.2 refused the company of the applicant and thereafter the Family Court came to the conclusion that the opposite party No.2 is entitled to maintenance and therefore directed the applicant to provide Rs.1,500/- w.e.f. the date of moving of application i.e. 08.10.2001 till the date of decision i.e. 14.01.2020 and the Family Court also directed the applicant to pay Rs.4,000/- per month to opposite party No.2 from the date of order i.e. 14.01.2020. The relevant portion of the order dated

14.01.2020 is quoted herein under :- "फौज(cid:4)ारी वा(cid:4) सं0 1018/2001 श्रीमती पूर्णिण@मा अस्$ाना आदि(cid:4) बनाम (cid:4)ेवेन्द्र कुमार श्रीवास्तव में वादि(cid:4)नी श्रीमती पूर्णिण@मा अस्$ाना की ओर से प्रस्तुत प्रा$@ना पत्र ख-3 अन्तग@त धारा-125 (cid:4)ं०प्र०सं० माननीय उच्च न्यायालय के आ(cid:4)े(cid:16) दि(cid:4)नांकिकत-29/04/2019 व 08/05/2019 के अनुक्रम में 4 APPLICATION U/S 482 No. - 6900 of 2025 पुनः सुनवाई उपरांत स्वीकृत किकया जाता है। विवपक्षी (cid:4)ेवेन्द्र कुमार श्रीवास्तव को आ(cid:4)ेशि(cid:16)त किकया जाता है किक वे वादि(cid:4)नी श्रीमती पूर्णिण@मा अस्$ाना को प्रस्तुत वा(cid:4) संस्थिस्$त करने की तितथि$ दि(cid:4)नांक 08/10/2001 से आज दि(cid:4)नांक 14/01/2020 तक प्रतेमाह 1500/- रूपए की (cid:4)र से धनराशि(cid:16) बतौर भरण-पोषण त$ा आज दि(cid:4)नांक 14/01/2020 से प्रतितमाह 4,000/- रूपए की (cid:4)र से बतौर भरण-पोषण धनराशि(cid:16) के रूप में अ(cid:4)ा करेगा। उक्त भरण-पोषण की धनराशि(cid:16) वादि(cid:4)नी को प्रत्येक माह के 10 तारीख तक विवपक्षी अ(cid:4)ा करना सुतिनस्थिLचत करेगा। भरण-पोषण की धनराशि(cid:16) अ(cid:4)ा नहीं किकए जाने की (cid:4)(cid:16)ा में वादि(cid:4)नी तिनयमानुसार भरण-पोषण की धनराशि(cid:16) जरिरए न्यायालय वसूल सकेगी। उल्लेखनीय यह भी है किक वा(cid:4) संस्थिस्$त करने की तितथि$ 08/10/2001 से दि(cid:4)नांक 14/01/2020 तक दि(cid:4)ए जाने वाले भरण-पोषण की धनराशि(cid:16) को विवपक्षी (cid:4)ेवेन्द्र कुमार श्रीवास्तव कुल 15 बराबर किकLतों में वादि(cid:4)नी को अ(cid:4)ा करना सुतिनLचत करे।" (v) The final order dated 14.01.2020 passed by the Family Court was challenged before this Court by the applicant by means of Appeal No.65 of 2020, which was dismissed on the ground of maintainability and thereafter the applicant filed Criminal Revision No.156 of 2025, which is pending consideration before this Court. (vi) The opposite party No.2 also approached this Court challenging the final order dated 14.02.2020 passed by the Family Court by means of filing Criminal Revision No.300/2020. The opposite party No.2 in the said revision, despite service of notice did not contest the case. Therefore, this court decided the case, after observing regarding service of notice upon the opposite party No.2, on merits vide order dated

04.01.2021. This Court enhanced the amount of maintenance from Rs.4000/- per month to Rs.15,000/- per month w.e.f. 14.01.2020 on wards and Rs.3,000/- per months w.e.f. 08.10.2001 till 14.01.2020 i.e. the date of moving the application under Section 125 Cr.P.C. The relevant portion of the order dated 04.01.2021 is extracted herein under :- "11. On the basis of the aforesaid judgments, learned counsel for revisionist states that since the salary of the opposite party No.2 was without any doubt Rs.35,000/- per month, there was no occasion for the court below for arbitrarily granting such meager amounts for 5 APPLICATION U/S 482 No. - 6900 of 2025 maintenance, ignoring the law settled by the courts including in the judgments referred to above.

I find force in the submission of learned counsel for revisionist. The grant of Rs.1500/- per month from 08.10.2001 to 14.01.2020 is arbitrarily low for three persons and later for two persons, one of whom was admittedly a handicapped minor going through his treatment. All those expenses, admittedly, were met by the revisionist-wife. Opposite party No.2 does not claim that he has spent any amount on the same. Even presuming the some meager amount is paid by him during pendency of the proceedings, the same would not have such an impact. Similarly, fixing only an amount of Rs.4,000/- per month after date of judgment, out of an amount of Rs.35,000/- per month, is also very meager and without any basis and contrary to law settled and referred to above. The prayer of revisionist for modification of maintenance amount appears to be reasonable and justifiable in the given facts. The court below has failed to exercise its jurisdiction as per settled law.

In view of the aforesaid, the impugned order dated 14.01.2020 is modified to the extent that opposite party No.2 shall be liable to pay an amount of Rs.3,000/- per month from 08.10.2001 (from the date of institution of proceeding) till 14.01.2020 (date on which judgment was passed by the court below) and an amount of Rs.15,000/- per month from 14.01.2020 onwards. Any amount already deposited/paid by opposite party No.2 in compliance of the impugned order dated 14.01.2020 shall be adjusted in payments. The amount for maintenance would be paid by 10th of every month, which means that the payment of maintenance of the February, 2021 shall be paid by 10th of March, 2021 and in similar manner every month thereafter. The maintenance from 08.10.2001 (date of institution of application) till 31.01.2021 shall be paid in 15 equal monthly installments starting from 01.03.2021 onwards till the entire amount is paid in the next 15 months, also by 10th of every month.

With the aforesaid, the revision stands allowed. " (vii) Present applicant, aggrieved by the order dated 04.01.2021 passed by this Court in Criminal Revision No.300/2020 filed an application for recall of the order dated 04.01.2021 and this application was rejected by this Court vide order dated 17.08.2024. (viii) Thereafter the applicant approached the Apex Court by means of Petition for Special Leave to Appeal (Crl.) No.9547 - 9548/2021 (Devendra Kumar Srivastava Vs. Poornima Asthana & Anr.). The Hon'ble Three Judges Bench of the Hon'ble Apex Court dismissed the said appeal vide order dated 04.01.2022. The order dated 04.01.2022 reads as under :- 6 APPLICATION U/S 482 No. - 6900 of 2025 "The Court is convened through Video Conferencing. Application seeking exemption from filing official translation of Annexures is allowed. Having heard learned counsel appearing for the petitioner- husband and carefully perusing the material available on record, we see no reason to interfere with the impugned Orders passed by the High Court of Judicature at Allahabad, Lucknow Bench, whereby the said Court while enhancing the quantum of maintenance on the revision petition filed by Respondent No.1- wife, dismissed the recall application filed by the petitioner - husband herein. The Special Leave Petitions are, accordingly, dismissed. Pending application filed in the matters also stands disposed of. " (ix) The copy of the order dated 04.01.2022, referred above, placed by the learned counsel for the opposite party No.2 for perusal of the court is taken on record.

The applicant, who got Rs.41,000/- basic pay and Rs.21,783/- towards D.A. in the month of January, 2025, has approached this Court by means of the instant application for the relief(s), quoted in para 2 of this order, on the basis of deductions indicated in para 33 of the application. The same reads as under :- "33. That following deduction are made per month from the salary of application given hereunder :- S.NO. HEAD OF DEDUCTIONS AMOUNT PER MONTH

7. G.P.F. G.I.S.(Ins.) G.I.S. (Sav.) 4110/- 60/- 140/- Society deduction towards loan 12100/- G.P.F.A. House repair loan Maintenance Total deductions 8600/- 1983/- 18450/- 45,443/- per month a) As held in Rajnesh v. Neha (2021) 2 SCC 324, maintenance must be realistic and within the paying spouse's means. The current maintenance far exceeds the Petitioner's capacity, violating the doctrine of reasonableness and his right to live with dignity under Article 21. b) That at present applicant officially receives cash in hand as Rs. 17440/- in which the applicant has to pay Rs. 601/- monthly rent of government accommodation and the applicant has to pay R.15144/- towards loan amount for doing pairvi of cases and to maintain himself and thus out of aforesaid monthly receipt of Rs.17440/- the applicant has to pay Rs.15745/- and applicant is in total cash in hand of Rs. 1695/- per month from which the applicant has to maintain himself and litigation 7 APPLICATION U/S 482 No. - 6900 of 2025 expenses which is not adequate to meet the necessary expenses and the applicant is compelled to borrow the money from his friends and known persons whereas total gross salary of applicant is Rs.

62883/- per month as per pay slip for the month of January, 2025. due to lack of money LIC installment per month of Rs. 1574/- quarterly is not being deposited by the applicant. Thus the applicant has to pay more than his monthly receipt. c) That apart from aforesaid payment/liability per month, there is one another yearly LIC policy of Rs. 7272/- and due to paucity of money the yearly LIC policy of Rs. 7272/- it has been lapsed on 12.3.2024. The Photostat copies of the pay slip for the month of January 2025, Bank Loan installment of Rs. 15144/- per month, receipt of Rs. 602/- towards house maintenance, LIC installment of Rs. 1574/- per month and Rs. 7272/- towards yearly LIC installment are being filed herewith collectively as Annexure No.9 to this affidavit collectively.. d) That at present applicant is unable to make payment of his installment towards loan as well as installment LIC and all the installment are adversely being affected and applicant is not in a position to pay maintenance of Rs.

15,000/- to respondent no. 2 but he is complying the order of this Hon'ble Court and even for discharging of loan and installment the applicant is taking loan for discharging of his duties to make payment of installment and loan per month. Further, he has to manage his day to day expenditure and towards food as well as maintenance. The applicant is not able to pay his LIC installments due to paucity of fund. Further, The applicant is unable to maintain himself and unable to manage his two times meals. e) That due to non arrangement of payment of arrears of maintenance for an amount of more than Rs. 10.00 lacs the contempt proceedings has been initiated by the petitioner against applicant which is pending before the Hon'ble Contempt Court. f) That till date neither the petitioner is ready to remain in the company of applicant nor she has allowed to son Anmol Srivastava to meet with the deponent.

The respondent No.2 has not allowed to his son to meet the applicant and whenever the applicant went to the residence of respondent No.2, she made quarrel and created ruckus. g) That at present Anmol Srivastava is earning more than lacs per month and he is working in a multinational Company as an Engineer after obtaining the degree of B.Tech. in Computer Science whereas the respondent No.2 is getting Rs.15,000/- per month as maintenance from deponent. h) That the applicant is making the payment of maintenance regularly each and every month as Rs.18,450/- which is being deducted from the salary of applicant since last about more than 3 years. i) That the Learned Court below uses to pass orders under the pressure of the respondent no. 2 as is evident from the aforesaid order dated 25.1.2024 and letter dated 28.8.2024 sent by the Additional Principal Judge, Family Court, Lucknow to Principal Judge, Family Court, Lucknow by virtue of which she has stated that total 13 cases are pending before her between applicant and respondent no.

2 in which the respondent no.2 has moved complaints making allegations against the then Presiding Officer that she has no faith in APJ Court no.3 hence her files be transferred to some other court and in this regard cases are still pending before the Hon'ble High Court. She further stated that in case under section 8 APPLICATION U/S 482 No. - 6900 of 2025 125 Cr..P.C. there is order of Hon'ble High Court for early disposal but in the said case the appellant has alleged that she has no faith in APJ-3 hence no proceeding be made in her files. The Learned Court below has written following facts : " यद्यविप यह प्राचीनतम पत्रावली के यह आक्षेप प्रत्याक्षेप पूव@ पीठासीन अथिधकारी के संबंध में है। परन्तु पत्रावली में केवल ए०पी० जे०-3 अंकिकत होने के कारण मेरे द्वारा उक्त पत्रावली की काय@वाही करना (cid:4)ुविवधापूण@ होगा जबकिक प्राथि$@नी स्वयं यह प्रा$@ना कर रही है किक ए०पी० जे० 3 द्वारा पत्रावली में काय@वाही न की जाये त$ा माननीय उच्च न्यायालय द्वारा उक्त पत्रावली भभीघ्र तिनस्तारण का आ(cid:4)े(cid:16) भी है त$ा इस संबंध में माननीय उच्चतम न्यायालय का भी भभीघ्र तिनस्तारण करने के तिन(cid:4)Q। दि(cid:4)ये गये है। पक्षकारों के मध्य धारा 13 दिहन्(cid:4)ु विववाह अथिधतिनयम की पत्रावली में (cid:4)ेवेन्द्र कुमार श्रीवास्तव के न आने के कारण मेरे द्वारा उक्त पत्रावली का अ(cid:4)म पैरवी में खारीज कर (cid:4)ी है। चूंकिक उक्त आ(cid:4)े श्रीमती पूर्णिण@मा अस्$ाना के विवरूद्ध नहीं $ा। अतः उक्त पत्रावचली में पूर्णिण@मा अस्$ाना के विवपरीत न होने के कारण आ(cid:4)े पारिरत किकया गया है। स्थिजससे माननीय उच्चमत न्यायालय के आ(cid:4)े। को अनुसरण किकया जा सके। पूर्णिण@मा अस्$ाना अभी भी प्रस्तुत प्रा$@ना पत्रों में ए०पी० जे० 3 न्यायालय के संबंध में अनुथिचत भाब्(cid:4)ों का प्रयोग किकया गया है। स्थिजसपर उनको कहा गया किक पीठासीन अथिधकारी परिरवतित@त हो चुकी है। परन्तु तब भी उनके द्वारा केवल उन्ही काय@वाही पर सहमत (cid:4)ी गई है जो उनके दिहत की है। ऐसी अवस्$ा में जब न्यायालय को (cid:4)ोनों पक्षों को न्यायदिहत में सा$ (cid:4)ेखना है। पूर्णिण@मा अस्$ाना की पत्रावशिलयों में इस प्रकार इस न्यायालय में काय@वाही संभव नहीं है। श्रीमती पूर्णिण@मा अस्$ाना द्वारा यह प्रा$@ना पत्र दि(cid:4)ये जाने से पत्रावली का तिनस्तारण किकये जाने का कोई औथिचत्य नहीं है।"

Upon due consideration of the aforesaid facts and submissions advanced by the learned counsel for the parties, this Court finds that the present application is liable to be dismissed with heavy cost. It is for the following reason (s) :- (i) The order dated 14.01.2020 was modified by this Court vide order dated 04.01.2021 and the order of this case dated 04.01.2021 has already been affirmed by the Hon'ble Apex Court vide order dated 04.01.2022. (ii) The present application is gross abuse of the process of law as the same has been filed to get the order of this Court dated 04.01.2021 reviewed which has been affirmed by the Hon'ble Apex Court vide order dated 04.01.2022. (iii) All the deduction(s) indicated in para 33 of this application, quoted in para 4 of this order, the basis of the instant application, are not statutory deductions. (a) In this regard reference can be made to relevant portion of para 8 of the judgment passed in the case of Jasbir Kaur Sehgal Vs.