High Court · 2025 on 20 May 2025

Judgment

1. Heard Sri Shekhar Upadhaya, assisted by Sri Pankaj Kumar Sharma, learned counsel for the revisionist, Mrs. Sufia Saba, learned counsel for the opposite party No.2, and learned A.G.A. for the State- respondent in Criminal Revision No.6024 of 2023.

2. Heard Mrs. Sufia Saba, learned counsel for the revisionist, Sri Ajay Kumar Pathak, assisted by Sri Pankaj Kumar Sharma learned counsel for the opposite party No.2, learned A.G.A. for the State-respondent in Criminal Revision No.5453 of 2023.

3. As both the Criminal Revisions have arisen out of same judgment and order dated 17.01.2023 passed by learned Additional Principal Judge, Family Court No.5, Ghaziabad in Criminal Maintenance Case No.660 of 2017, under Section 125 Cr.P.C.. Both the revisions are being decided by this common judgment.

4. The factual matrix of the case in brief are that the original applicant Smt. Kumud Sharma filed application for maintenance under Section 125 Cr.P.C. on 10.10.2017 seeking maintenance from her husband for maintenance of herself and minor daughter Km. Nidhi, with averments that her marriage with opposite party was solemnized on 25.02.2015 according to Hindu rites and rituals. Her father and brothers had spent around Rs.20 lakh in the marriage and gave sufficient gifts and ornaments in the marriage to the applicant and her in-laws and opposite party. The applicant was sent off to the native place of opposite party after marriage which lies in village Jattari, P.S. Tappal District Aligarh. After some time, the mother in law of the applicant started demanding a car and exerted pressure on the applicant to sell or pledge her ornaments and purchase a car. She stayed at the native place of her husband for some time, and thereafter her husband brought her to Greater Noida and the spouse stayed there in a rented house No.E-301, Eldeeco Green and E-701 there. Her husband used to come to home in drunken condition. He unnecessarily raised suspicion on her and used to questioned her as to whom she was speaking on mobile phone. He even broke the LED TV, mobile phone and laptop by dashing these things on the wall. He also engaged in marpeet with her parents and kept on repeating the demand of dowry of car. The applicant, any how managed Rs.80,000/- from her her relatives and handed it over to her husband. On

20.01.2016 the applicant gave birth to a girl child, but even then, they continued ill treatment to the applicant on the pretext that she failed to give birth to a male child. On 28.05.2016 her husband and in-laws had assaulted her badly and turned her out from the home on 29.05.2016 in wearing apparel and warned her to not come back without making arrangement for a car. They sent her girl child to her after some time.

She lodged an FIR of the incident dated 29.05.2016, 28.05.2016 and

30.05.2016, at P.S. Kasna, vide Case Crime No.363 of 2016, under 2 of 12 Sections 307, 498-A, 323, 506 IPC and Section ¾ of D.P. Act, P.S. Kasna, District Gautam Budh Nagar. But the opposite moved a fake application and affidavit in the name of the applicant before S.P. Rural, Gautam Budh Nagar, and police after placing reliance on that filed final report in favour of the opposite party. Her husband is a highly educated person, he is a diver of International Standard her husband obtained a technical degree from South Africa and gives his services in many Oil Companies, even in abroad and he derives a monthly income of Rs.2 lakh by his expertise. The applicant is any how making her both ends meet, as she has to also bear the necessities of her daughter. The applicant has demanded Rs.1 lakh per month as maintenance from the date of filing of application dated 29.05.2016 when she was dislodged from his home by opposite party.

5. The opposite party appeared on summons and filed his objection on application under Section 125 Cr.P.C., wherein he admitted the factum of marriage and denied the allegations of torture, harassment and matrimonial cruelty and demand of dowry made against him and his family members in maintenance petition. He has stated that the applicant and opposite party were in a relationship due to love affair and they were in live-in relationship since 08.03.2014 which culminated into their marriage 25.02.2015. He further submitted that he never consumed liquor. It is wrong to say that he ever misbehaved with the applicant or broke the valuable articles in the home. The parties have entered into marital alliance driven by love affair; it was dowry-less marriage and no question of demand of dowry raise. The applicant herself has chosen her as life partner after knowing him very well for a longtime. In fact the applicant is an arrogant and temperamental woman, who herself left her matrimonial home on instigation of her brothers, and even left her daughter behind. The opposite party tried his best to bring her back, but she did not 3 of 12 oblige. The services of the applicant is a diver on contractual basis and not on regular basis. Applicant is a highly educated woman, she did bachelor of Occupational Therapy, from Santosh Medical College and Hospital, Ghaziabad and thereafter she obtained Masters Degree in Occupational Therapy from Zamia Hamdard University, New Delhi. She did not like to live in a small village like Quasba Jattari, District Aligarh, and on her insistence opposite party brought her at Noida and started living in a flat, but the applicant did not take any interest in household work and used to pickup quarrel with opposite party. She is habitual to live high society life and used to demand money every now and then. The applicant had filed an application and affidavit on her sweet will and for that reason the police closed the criminal case lodged by her in the year 2016. The applicant and opposite party live in House No.35, Gail Society, Sector Pie, Greater Noida, after vacating her previous house, but the things could not get better. The applicant engaged in marpeet with opposite party on 03.05.2017, due to which he became injured and lodged an FIR at P.S. Kasna, District Gautam Budh Nagar, vide Case Crime No.374 of 2017, in which a compromise was entered and the parties again started living together. But on 27.07.2017, the applicant went to her parental place and after locking the house in absence of opposite party on 27.02.2017. The opposite party informed the local police on his return on 29.07.2017. The applicant again visited the home of opposite party on 13.08.2017 and brought large number of household goods in his absence and without his knowledge. The opposite party is feeling distraught by the actions of applicant, the opposite party filed a Suit under Section 9 of the Hindu Marriage Act in 2017, which is still pending. The applicant has opened a Therapy Center in P-4/42 Builders Area Greater Noida and she earns around Rs.1 lakh per month as consultation fee to patient. She also gives her services in DLF School, Greater Noida as NGO and earns therefrom. The applicant has give birth to a girl child 4 of 12 on 20.01.2018 also and both the spouses have celebrated the occasion, but the applicant has concealed this fact.

6. Both the parties have filed their affidavit of disclosure of income assets and liabilities, as per guidelines of Hon’ble Supreme Court in Rajnesh Vs. Neha 2021 (2) SCC 324 Before the court below herein they have shown themselves as non-earning member. Opposite party has shown his parents as his dependent, on which he spends Rs.15,000/- per month. He has stated that he is paying interim maintenance as directed by the court to the applicant.

7. Learned court below after considering the pleadings and evidence of the parties framed five points of determination and has given a finding that on the basis of evidence adduced by the parties it is held that the applicant has successfully proved this fact that she is residing separately from her husband for sufficient reasons. He neglected to maintain his wife and minor daughter. The applicant has admitted that she has obtained masters degree in Occupational Therapy, but in fact she is a home maker and not an earning lady. She has admitted in her cross-examination that prior to year 2013, she was paying income tax, but now she is not paying any income tax. She was in the job prior to 2013, but now she is jobless. She has denied this suggestion that she is associated with Corner Store Foundation in Grater Noida. Learned court below has observed while placing reliance on judgment of Hon’ble Supreme Court in Sunita Kachwaha and others Vs. Anil Kachwaha AIR 2015 SC554, wherein Hon’ble Supreme Court held that in any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance. Hon’ble Court further held that the proceedings under Section 125 Cr.P.C. is summary in nature. In a proceeding under Section 125 Cr.P.C., it is not necessary for the court to ascertain as to 5 of 12 who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant-wife and the respondent and observing that the appellant-wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Inability to maintain herself is the per-condition for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s economic condition is quite good, the wife would be entitled to maintenance. The findings of learned court below are based on evidence on record and require no interference in this revision.

8. The learned court below has also given a finding that applicant has filed statement of account of opposite party for the year 2019, which reveals that Rs.1,41,120/- was credited thereon on 15.04.2019, Rs.4,35,954/- on 30.04.2019, Rs.1,48,233/- on 15.05.2019, Rs.1 lakh on 13.06.2019, Rs.71,631/- on 15.03.2019, Rs.73,787/- on

19.07.2019, and Rs.3,48,153/- on 18.092019 as salary. The applicant has also filed extracts of Khatauni of his agricultural land which lies in the name of father of opposite party namely Devendra Singh, which reveals that his father is not dependent on income of opposite party. Learned court below has estimated monthly income of of opposite party as Rs.1,50,000/- on the basis of various documents filed by the parties, which includes Bank Statement, ITR of opposite party etc. Learned court below has also given a finding that opposite party has neglected to maintain his wife and daughter and the applicant is entitled to seek maintenance from opposite party. He is possessed of 6 of 12 sufficient means to maintain his wife and daughter and with this finding has awarded Rs.25,000/- as maintenance to the applicant for maintenance of herself and her minor daughter from the date of filing of application dated 10.01.2017.

9. Learned counsel for the revisionist Prince Kumar submitted that there is ample evidence on record, which reveals that the original applicant Smt. Kumud Sharma has been residing separately from opposite party without sufficient cause and therefore her claim for maintenance is barred under the provisions of Section 125 (4) Cr.P.C., which disentitles her to seek maintenance from opposite party i.e. the husband. But the learned court below has overlooked this legal issue and supporting evidence in the impugned judgment and order.

10. He next submitted that learned court below has estimated monthly income of the revisionist Prince Kumar as Rs.1,50,000/- on the basis of his earnings in the year 2019, when he was giving his services in Foreign Countries and would derive handsome remuneration, but this is not a continuous position, sometime he remains jobless. He is not employed any where, his services as a professional diver are purely contractual and he renders his services on demand and requisition. He is not employed any where on regular basis. The ITRs shown that his earnings are meagre in comparison to his liabilities and it is not possible for him to pay a huger sum of Rs.25,000/- per month as maintenance to his wife, the respondent.

11. In Criminal Revision No.6024 of 2023, he further submitted that the learned court below has fixed an exorbitant amount as maintenance, without considering oral and documents evidence adduced by the parties in proper perspective, and therefore, the impugned judgment is not sustainable under eye of law. 7 of 12

12. The learned court below has ignored the evidence of revisionist Prince Kumar, altogether and placed reliance on bald testimony of the original applicant. The learned court below had also awarded interim maintenance to the applicant during the pendency of maintenance petition to the tune of Rs.5,000/- per month to the applicant No.1 Smt. Kumud Sharma and Rs.5,000/- per month to Km. Nidhi vide order dated 20.01.2021 and the revisionist has been paying this amount of interim maintenance, and the opposite party has also filed an Execution Application for recovery of the amount of this interim maintenance.

13. The applicant Smt. Kumud Sharma has concealed her lucrative job and earns deliberately to extort maintenance from her husband, the revisionist. She has obtained masters decree in professional education, and she is not supposed to live idle and seek maintenance from her husband, whom she has deserted on her own. The applicant is entitled to seek maintenance from husband upto the standard, which he can afford from his earnings and not to lead a luxurious life.

14. Per contra, learned counsel for the respondent No.2 in Criminal Revision No.6024 of 2023 and the revisionist is Criminal Revision No.5453 of 2023, submitted that the revisionist is a skilled and highly qualified diver of International Standard and he earns handsome remuneration by diving on the requisition Oil Companies in Middle East and South Africa. He has obtained profession degree from South Africa. The applicant was fed-up and perturbed from continuous torture, harassment and ill treatment given to her by opposite party and his family members, and she was left with no option, but to part her ways from husband and started living separately from hims in Greater Noida in separate accommodation. He did a contract based job till 2019. 8 of 12

15. The learned court below has estimated the monthly income of opposite party as Rs.1,50,000/- on the basis of oral and documentary evidence adduced by the parties, yet has given a small amount of Rs.25,000/- as maintenance to the applicant, which is insufficient for maintenance of herself and her minor daughter. Therefore, the quantum of maintenance awarded to the applicant is insufficient and is liable to be enhanced substantially to enable the applicant and his daughter to meet their necessary expenses and to lead a normal life. Prince Kumar has committed default in payment of interim maintenance to his wife and execution proceedings are initiated against him before the court below.

16. Although the original applicant has categorically denied any earning by virtue of her professional qualification as Occupational Therapist, in which she did masters from Zamia Hamdard University, New Delhi. She has also admitted that she was doing some job up to year 2013. The applicant is not supposed to live idle and demand a huge sum of money from her husband as maintenance, despite the fact that she is qualified and able to work on her own. This relates to observe there is big demand of qualification occupational therapists in various hospitals, nursing homes. The occupational therapists even render their services to patients and receive consultation fee in lieu thereof. She has admitted in her cross-examination that she does not live at present at her parental place, but lives in a rented place at Greater Noida alongwith her daughter and her daughter studies there. However, this fact can also not be lost sight that the Hon’ble Supreme Court has recognized the legal position that even if the wife is earning something husband will not absolved the husband of his obligation to maintain her, which is a statutory obligation of the husband, so that the wife could live up to the standard of which she was accustomed to live when the spouse were living together as married couple. The 9 of 12 original opposite party, Prince Kumar has filed his income tax returns and bank statements, which show very small annual income and credit of small amounts in the account, leaving the bank statement of

18.10.2018 to 18.09.2019, which is shown above. It appears that the opposite party has concealed his actual income since the year 2019. and has deliberated shown his income Nil in affidavit of disclosure of income, assets and liabilities.

17. Hon’ble Supreme Court has also held in Kiran Tomar Vs. State of U.P. in 2020 SCC Online SC 1539 decided on 31.10.2022 that while deciding a case filed under Section 125 Cr.P.C. “Income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is a tendency to underestimate income.”. Hence, it was for the Family Court to determine what would be the real income of the husband to enable the wife and daughters to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together and thus, the High Court was not justified in setting aside the order of the Family Court.

18. In view of foregoing discussion and in the light of judicial precedent cited above, this Court is of the considered opinion that the original applicant has failed to produce a case for enhancement of amount of maintenance, as the documents produced on record do not suggests that the original opposite party Prince Kumar is still deriving a handsome income which justifies the enhancement of maintenance awarded to the applicant in impugned judgment i.e. Rs. 25,000/- per month from the date of filing of application. Therefore Criminal Revision No.5453 of 2023 is devoid of force and no enhancement is called for in maintenance awarded by the learned court below and this revision is liable to be dismissed. 10 of 12

19. Criminal Revision No.5453 of 2023 is dismissed hereby.

20. So far as Criminal Revision No.6024 of 2023 is concerned, keeping in view the financial background of the revisionist that his father owns agricultural property, he is single son of his father and keeping in view his professional experties as acclaimed diver of international standard and is earlier income shown in his bank statement of the year 2019, and keeping in view the economic needs of the applicant to maintain herself and her minor daughter and it can be held that the monthly income of the revisionist may be estimated as below Rs.1 lakh, there is no evidence in support of the assertion of the appellant that the opposite party Prince Kumar is employed any where on contractual basis and gets regular income. Therefore, some reduction in amount of maintenance awarded in the impugned order is desirable.

21. Therefore, it is directed that original opposite party Prince Kumar is directed to pay Rs.15,000/- as maintenance to the applicant from the date of filing of application to date of judgment at the rate of Rs.15,000/- per month and thereafter Rs.20,000/- per month from the date of judgment onwards for maintenance of the applicant and her minor daughter. The amount obtained by the applicant as interim maintenance or arrear of interim maintenance in the present case shall be liable to be adjusted towards arrear of maintenance as calculated on the basis of this modified order. The other terms and conditions lying in impugned judgment are not being interfered with.

22. This is clarified that this modified order shall not affect jurisdiction of learned court below to pass appropriate orders on an application, if any filed on behalf of either party under Section 127 Cr.P.C. for alteration of amount of maintenance. 11 of 12

23. Criminal Revision No.6024 of 2023 stands partly allowed, accordingly. Order Date :- 20.05.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad 12 of 12