Seema & Others v. Vinay Prakash Maddheshiya) under Section
Case Details
Neutral Citation No. - 2023:AHC:174877 Reserved on 25 th August, 2023 Delivered on 30 th August, 2023 Court No. - 82 Case :- CRIMINAL REVISION No. - 3337 of 2022 Revisionist :- Seema @ Seema Maddheshiya And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Dileep Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J. 1. Heard Mr. Dileep Kumar Srivastava, learned counsel for the revisionist and the learned A.G.A. for the State. Challenge to the present Criminal Revision 2. This criminal revision under Section 397/401 Cr.P.C. has been filed for quashing the judgment and order dated 17th May, 2022 passed by the Additional Principal Judge, Family Court, Kushinagar at Padrauna in Maintenance/Complaint Case No. 93 of 2020 (Seema & Others Vs. Vinay Prakash Maddheshiya) under Section 125 Cr.P.C., Police Station-Ahirauli Bazar, District-Kushinagar, whereby the Family Court has rejected the said case. Case of the Revisionist 3. Since the revisionist no.2 and 3 namely Abhay and Kajal both are minor, hence the Vakalatnama has not been signed on behalf of revisionist no.2 and 3. The revisionist have filed an application Under Section 125 Cr.P.C. in the Court of Principal Judge, Family Court, Kushinagar at Padarauna on 02.02.2017, which was registered as Maintenance/ Complaint Case No. 49 of 2007 (Seema and others Vs. Vinay Prakash Maddheshiya) and in the year 2020 case number has been changed as Case No. 93 of 2020. In the said application it has been stated that marriage of revisionist no.1 Seema was solemnized with opposite party no.2 namely Vinay Prakash Maddheshiya ten years ago in accordance
Legal Reasoning
with Hindu Rites and Customs. From the aforesaid wedlock, revisionist no.2 and 3, namely, Abhay and Kajal were born, but the family members of opposite party no.2 including opposite party no.2 demanded more dowry, when same has not been fulfilled, they used to torture and harass revisionist no.1, mentally and physically. The opposite party no.2 and his family members kicked out the revisionist from their house on 28.09.2016 snatching all ornaments and Rs. 22,000/- from her. Since 28.09.2016 the revisionist no.1, namely, Seema is living in her father's house alongwith her two minor children i.e. revisionist no.2 and 3, namely, Abhay and Kajal. Since the revisionist no.1 is unable to maintain herself and her two minor children on account of which they have approached the Family Court, Kushinagar at Padarauna by filing the said application under Section 125 Cr.P.C. against the opposite party no.2. The opposite party no.2, namely, Vinay Prakash Maddheshiya has sufficient property and business, inasmuch as he is earning Rs.40,000/- (Forty Thousand) every month. The said application under Section 125 Cr.P.C. has been rejected by the learned Additional Principal Judge, Family Court, Kushinagar at Padarauna vide judgement and order dated 17.05.2022. It is against this order that the present criminal revision has been filed. 4. Submissions advanced on behalf of the revisionists (I) The revisionist no.1, namely, Seema is married wife of opposite party no.2, namely, Vinay Prakash Maddheshiya and revisionist no.2 and 3 are their children. The revisionist no.1 namely seema is unable to maintain herself and her children but without considering all these facts the learned Additional Principal Judge, Family Court, Kushinagar at Padarauna has illegally rejected the application filed under Section 125 Cr.P.C. by revisionists. (II) The judgment and order dated 17.05.2022 passed by learned Additional Principal Judge, Family Court, Kushinagar at Padarauna is bad in the eye of law as the same is without considering the material evidence on record as also is against the settled principle of natural justice. The same is also against the provisions of 125 of the Criminal Procedure Code and has been passed without application of judicial mind. On the cumulative strength of the aforesaid submissions, learned counsel for the revisionist submits that the order impugned is liable to be 2 set aside and the court below be directed to require the opposite party no.2 to pay a sum of Rs. 15,000/- (Fifteen Thousand) to the revisionists as maintenance from the filing date of application under Section 125 Cr.P.C. 5. Submission of the learned A.G.A. The learned A.G.A. for the State has fairly conceded that the court below has wrongly passed the order impugned rejecting the application filed by the revisionists under Section 125 Cr.P.C. for their monthly maintenance allowance against opposite party no.2. The court below has not recorded any finding with regard to the maintenance allowance. It has only rejected the same on the issue of demand of dowry. He, therefore, submits that the order impugned is liable to be set aside and the matter be remanded to the court below to decide the application of the revisionists under Section 125 Cr.P.C. afresh in light of the ingredients mentioned in the said provision. 6. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present criminal revision including the order impugned passed by the Family Court. 7. Before expressing any opinion on the merits of the order impugned, this Court may first deal with the finding and conclusion drawn by the family court while passing the said order. 8. While passing the order impugned the family court for coming to the conclusion has recorded that after hearing and perusing the documents as were on record, it is clear that the applicant had filed this maintenance suit on behalf of herself and her minor children namely, Abhay and Kajal, respectively, on 02.02.2017, for a total of fifteen thousand rupees per month. She had alleged that on demand of one lakh rupees by the opposite party and his family members, she was chased away along with her minor children and presently she is living with the children in her maternal house. It has further been recorded that the revisionist in support of her claim has been got examined as P.W.-1 and she has produced her father Jokhan Madheshia as P.W.-2 as her witness. The father of the revisionist no.1 i.e. P.W.-2 has fully supported the statements of revisionist no.1 in his affidavit. It has further been recorded that on 30.03.2022 when the hearing was going on, the applicant was directed submit a list for 3 perusal of the court which is signed by both the parties in which the amount and gifts, which were to be given on the occasion of marriage, have been mentioned. Regarding the said order, a list was filed by the applicant on 11.05.2022 but the said list has not signed by both the parties and only the signature of the revisionist no.1 has been appended on the said list. On the basis of such list submitted by the revisionist no.1, the Family Court has opined that the Dowry Prohibition Act 1961 makes both taking dowry and giving dowry punishable. If on the occasion of marriage, without demanding dowry, both parties have given any gift etc. as per custom, then its list will be made under the Dowry Prohibition Act Rules 1985, in which both the parties will sign. Similarly, the Family Court has also opined that in para-2 of the claim of revisionist no.1 it has been said that the entire amount and goods were given after negotiation between the opposite party no.1 and her family members. On the basis of such facts, the Family Court has further recorded that the revisionist no.1 was aware of the dowry being taken by the opposite party i.e. opposite party no.2 and dowry being given by her father. The Family Court has referred Section-3 D.P. Act in which it has been provided that the immunity to the married woman in the case of dowry is being given, but for the purposes of maintenance, it is coming before the court that the revisionist no.1 was aware of all these things. Since the revisionist no.1 was a major at that time, therefore, she can be considered as an abettor. In such a situation, the Family Court was of the view that the money and material spent by the father of the revisionist no. 1 in consideration of the marriage comes under the category of dowry. There is also the principle of law that Hoc quidem perquam es sed ita lex scipta ets... "hard may be the law, yet it should be given effect to." That is, no matter how harsh the law is, it should be implemented. 9. On the basis of such finding, while passing the order impugned the Family Court has come to the conclusion that the application filed by the revisionist no.1 along with her two children under Section 125 Cr.P.C. for their monthly maintenance allowance is only for harassing the opposite party no.2 and by making false allegations of dowry, she wants money towards maintenance allowance from opposite arty no.2 and in such 4 circumstances she is not entitled to any maintenance allowance. As such, the application is liable to be rejected. 10. Now this Court may refer the provisions of Section 125 Cr.P.C. For ready reference Section 125 Cr.P.C. reads as follows: “125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Decision
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: [Provided further that the Magistrate may, during the pendency of the proceedings regarding monthly allowance for the maintenance under this sub-Section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father and mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] Explanation.- For the purposes of this Chapter,- (a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ), is deemed not to have attained his majority; (b)" wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. [(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of 5 the application for maintenance or interim maintenance or expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him. (4) No Wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 11. From perusal of the finding recorded by the court below while passing the order impugned including its conclusion as well as the provisions of Section 125 Cr.P.C., It is crystal clear that the court below has not recorded any finding qua the ingredients provided in Section 125 Cr.P.C. with regard to the issue as to whether the husband of revisionist no.1 having sufficient means neglects or refuses to maintain (a) his wife (revisionist no.1), unable to maintain herself, (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or 6 mental abnormality or injury unable to maintain itself etc. being fulfilled or not. The family court has misread himself in rejecting the application of the revisionists under Section 125 Cr.P.C. only on the ground that in the application/claim petition under Section 125 Cr.P.C. false allegation with regard to demand of dowry has been made. The Family Court has not recorded even a single line qua the ingredients mentioned in the said Section, in its order impugned. Such order is an absurd order, which may warrant interference by this Court exercising its revisional power under Section 397/401 Cr.P.C. 12. On overall scrutiny and evolutional of the aforesaid observations and submissions made by the learned counsel for the parties as also the finding recorded in the order impugned, this Court holds that the order impugned dated 27th May, 2022 passed by the Additional Principal Judge, Family Court, Padrauna, Kushinagar cannot be legally sustained and is hereby set aside. The application made by the revisionists being Maintenance/Complaint Case No. 93 of 2020 (Seema & Others Vs. Vinay Prakash Maddheshiya) under Section 125 Cr.P.C., Police Station-Ahirauli Bazar, District-Kushinagar is restored to its original number. The concerned Family Court is directed to consider and decide the said complaint case afresh, in accordance with law including the observations made above, by means of a reasoned speaking order, preferably within four months from the date of production of a certified copy of this order after affording opportunity of hearing to both the parties. 13. The present criminal revision is allowed subject to the observations made herein above. (Shiv Shanker Prasad, J.) Order Date :- 30.8.2023 Sushil/- Digitally signed by :- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad 7