Smt. Lalita Devi and another v. Shailendra alias Ajay), under Section
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Case No. 428/11/2014 (Smt. Lalita Devi and another Versus Shailendra alias Ajay), under Section 125 CrPC, whereby the application filed by the revisionist claiming maintenance has been rejected. This Court vide order dated 23.5.2024 had directed learned counsel for revisionist to address the Court as to what will be the legal consequence of a plea, which was not taken before the concerned Family Court in the application under Section 125 CrPC and in the testimony of the aggrieved wife as well, which was recorded before the said Court. This direction was issued in the wake of a plea raised in the ground 'E' mentioned in the instant memo of revision, wherein it is averred that opposite party no. 2 / husband has entered into illegal second marriage with some other lady, namely, Anusuiya Pathak is residing with her, does not find place in the original application under Section 125 CrPC filed by the applicant / revisionist before the court concerned. Learned counsel submitted that as the said plea was not taken before the court below, he is not laying any emphasis therein at this stage and the revision may kindly be decided, ignoring the ground 'E' mention in the memo of revision. Learned counsel for the revisionist submits that the court below has dismissed the application filed by the revisionist for maintenance under Section 125 CrPC by mis-appreciation of evidence appearing on record. The court below has failed to consider the evidence adduced by the parties in right perspective. The court below has not even given a lip service to the claim of maintenance raised on behalf of revisionist no. 2, who is minor daughter of revisionist no. 1 and opposite party no. 2. The court below has not awarded any maintenance to the revisionist no. 2, who is minor daughter of opposite party no. 2. The operative portion of the judgement is self defective, as stated therein that the application for maintenance filed by revisionist Smt. Lalita Devi against opposite party no. 2 Shailendra alias Ajay under Section 125 CrPC is dismissed, whereas the application was filed by two applicants, namely, Smt. Lalita Devi and Km. Ameeshaa, her minor daughter through her guardian and mother Smt. Lalita Devi. The issue of maintenance of minor daughter has not been even addressed in the impugned judgement and order and even if the Court below comes to the conclusion that the wife is not entitled to claim any maintenance from her husband, yet the husband being father of the minor daughter, is under obligation to maintain her daughter and he cannot shirk his responsibility in this regard. Section 125 CrPC is enacted for providing maintenance to wife, children and old parents. He next submits that the court below has read the evidence of applicant / revisionist in piecemeal and has come to the conclusion that there is apparent contradiction in her statement in examination-in-chief and in cross- examination, whereas in fact there is no contradiction if the entire evidence is read in toto. A wife cannot afford to live with the husband, who is involved in illicit relationship with some other lady and if she is parted with her husband and shifted to her parental home being perturbed by acts and omissions of her husband, it cannot be inferred that she is separated from her husband without sufficient cause and the findings of the court below in this regard is perverse. He has lastly submitted that husband / opposite party no. 2 works under leprosy mission and also as L. I. C. agent and is capable of maintaining his wife and minor daughter. The revisionist has stated in her cross- examination that the reason behind altercation between the parties, is the carelessness of husband and it is provided under Section 125 CrPC that a wife is entitled to seek maintenance from her husband, if he is not inclined to maintain her. Per contra, learned AGA has submitted that the marriage between the parties was solemnized way back in the year, 1996, i.e, thirteen years prior to filing of application for maintenance under Section 125 CrPC in the year, 2019, wherein, she has stated that she is living separately from her husband since the year, 2008. The application for maintenance was filed on
28.1.2009 and interim maintenance was awarded at the rate of Rs. 3000/- and Rs. 2000/- month to the wife and daughter respectively but the said order was recalled on an application filed by opposite party no. 2 and subsequently the quantum of maintenance was reduced to Rs. 700/- and Rs. 400/- on
17.12.2016 by the Principal Judge, Family Court. The impugned judgement is based on evidence on record and no illegality or perversity is found therein. Considering the rival submissions of learned counsel for the parties, I find substance in the submissions raised by learned counsel for revisionist and grounds taken in the memo of revision. It is obvious that the court below has not considered the question of grant of maintenance to the minor daughter of the revisionist no. 1 at all and impugned order is based on some citations of submissions of revisionist no. 1 in examination-in- chief and her cross-examination. The law of appreciation of evidence requires that the evidence of a witness should be read as a whole and not in piecemeal an only on account of some admissions by the claimant, which suits to the case of opposite party, her entire statement cannot be discarded. The impugned order has taken hyper technical approach and some apparent foresight as stated above, is found therein. Therefore, impugned order date 6.12.2022 is vitiated by illegality, and irregularity and it cannot be sustained and deserves to be set aside and is hereby set aside. The matter is remitted back to the court below to decide the case afresh. The court below is directed to afford an opportunity of leading some additional evidence, if any, to the parties and decide the case in accordance with law as expeditiously as possible, preferably within a period of six months. The opposite party no. 2 is further directed to pay maintenance at the rate of Rs. 5000/- and Rs. 4000/- per month to revisionist nos. 1 and 2 respectively, from the date of production of certified copy of this order till pendency of the case before it. Order Date :- 4.2.2025 HR HEMANT RANJAN High Court of Judicature at Allahabad
Case No. 428/11/2014 (Smt. Lalita Devi and another Versus Shailendra alias Ajay), under Section 125 CrPC, whereby the application filed by the revisionist claiming maintenance has been rejected. This Court vide order dated 23.5.2024 had directed learned counsel for revisionist to address the Court as to what will be the legal consequence of a plea, which was not taken before the concerned Family Court in the application under Section 125 CrPC and in the testimony of the aggrieved wife as well, which was recorded before the said Court. This direction was issued in the wake of a plea raised in the ground 'E' mentioned in the instant memo of revision, wherein it is averred that opposite party no. 2 / husband has entered into illegal second marriage with some other lady, namely, Anusuiya Pathak is residing with her, does not find place in the original application under Section 125 CrPC filed by the applicant / revisionist before the court concerned. Learned counsel submitted that as the said plea was not taken before the court below, he is not laying any emphasis therein at this stage and the revision may kindly be decided, ignoring the ground 'E' mention in the memo of revision. Learned counsel for the revisionist submits that the court below has dismissed the application filed by the revisionist for maintenance under Section 125 CrPC by mis-appreciation of evidence appearing on record. The court below has failed to consider the evidence adduced by the parties in right perspective. The court below has not even given a lip service to the claim of maintenance raised on behalf of revisionist no. 2, who is minor daughter of revisionist no. 1 and opposite party no. 2. The court below has not awarded any maintenance to the revisionist no. 2, who is minor daughter of opposite party no. 2. The operative portion of the judgement is self defective, as stated therein that the application for maintenance filed by revisionist Smt. Lalita Devi against opposite party no. 2 Shailendra alias Ajay under Section 125 CrPC is dismissed, whereas the application was filed by two applicants, namely, Smt. Lalita Devi and Km. Ameeshaa, her minor daughter through her guardian and mother Smt. Lalita Devi. The issue of maintenance of minor daughter has not been even addressed in the impugned judgement and order and even if the Court below comes to the conclusion that the wife is not entitled to claim any maintenance from her husband, yet the husband being father of the minor daughter, is under obligation to maintain her daughter and he cannot shirk his responsibility in this regard. Section 125 CrPC is enacted for providing maintenance to wife, children and old parents. He next submits that the court below has read the evidence of applicant / revisionist in piecemeal and has come to the conclusion that there is apparent contradiction in her statement in examination-in-chief and in cross- examination, whereas in fact there is no contradiction if the entire evidence is read in toto. A wife cannot afford to live with the husband, who is involved in illicit relationship with some other lady and if she is parted with her husband and shifted to her parental home being perturbed by acts and omissions of her husband, it cannot be inferred that she is separated from her husband without sufficient cause and the findings of the court below in this regard is perverse. He has lastly submitted that husband / opposite party no. 2 works under leprosy mission and also as L. I. C. agent and is capable of maintaining his wife and minor daughter. The revisionist has stated in her cross- examination that the reason behind altercation between the parties, is the carelessness of husband and it is provided under Section 125 CrPC that a wife is entitled to seek maintenance from her husband, if he is not inclined to maintain her. Per contra, learned AGA has submitted that the marriage between the parties was solemnized way back in the year, 1996, i.e, thirteen years prior to filing of application for maintenance under Section 125 CrPC in the year, 2019, wherein, she has stated that she is living separately from her husband since the year, 2008. The application for maintenance was filed on
28.1.2009 and interim maintenance was awarded at the rate of Rs. 3000/- and Rs. 2000/- month to the wife and daughter respectively but the said order was recalled on an application filed by opposite party no. 2 and subsequently the quantum of maintenance was reduced to Rs. 700/- and Rs. 400/- on
17.12.2016 by the Principal Judge, Family Court. The impugned judgement is based on evidence on record and no illegality or perversity is found therein. Considering the rival submissions of learned counsel for the parties, I find substance in the submissions raised by learned counsel for revisionist and grounds taken in the memo of revision. It is obvious that the court below has not considered the question of grant of maintenance to the minor daughter of the revisionist no. 1 at all and impugned order is based on some citations of submissions of revisionist no. 1 in examination-in- chief and her cross-examination. The law of appreciation of evidence requires that the evidence of a witness should be read as a whole and not in piecemeal an only on account of some admissions by the claimant, which suits to the case of opposite party, her entire statement cannot be discarded. The impugned order has taken hyper technical approach and some apparent foresight as stated above, is found therein. Therefore, impugned order date 6.12.2022 is vitiated by illegality, and irregularity and it cannot be sustained and deserves to be set aside and is hereby set aside. The matter is remitted back to the court below to decide the case afresh. The court below is directed to afford an opportunity of leading some additional evidence, if any, to the parties and decide the case in accordance with law as expeditiously as possible, preferably within a period of six months. The opposite party no. 2 is further directed to pay maintenance at the rate of Rs. 5000/- and Rs. 4000/- per month to revisionist nos. 1 and 2 respectively, from the date of production of certified copy of this order till pendency of the case before it. Order Date :- 4.2.2025 HR HEMANT RANJAN High Court of Judicature at Allahabad