Prince Kumar v. Smt. Hemlata) has been filed as annexure No.S.A on 23 Jan 2025

Judgment

1. The copy of memo of appeal filed by the revisionist, in First Appeal No.802 of 2023 (Prince Kumar Vs. Smt. Hemlata) has been filed as annexure No.S.A.1 through supplementary affidavit which is taken on record.

2. Instant Criminal Revision has been preferred against the judgment and order dated 28.04.2023 passed by learned Principal Judge, Family Court, Jhansi in Maintenance Case No.15 of 2018. Whereby the respondent No.2 Km. Mahima the minor daughter of the

revisionist and his estranged wife Smt. Hemlata has been awarded maintenance at the rate of Rs.4,000/- per month from the date of filing of application dated 25.03.2016. It is also directed in the impugned order that interim maintenance awarded to the applicant Km. Mahima earlier vide order dated 30.01.2020 shall be liable to be adjustment towards final maintenance order passed in the impugned judgment.

3. 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.

4. At the outset, learned counsel for the revisionist submitted that there if formal defect in the impugned judgment and order as two 2 petitions, one filed on behalf of Km. Mahima, minor daughter of the revisionist and his wife under Section 125 Cr.P.C. claiming maintenance for applicant, and the other a divorce petition under Section 13 of Hindu Marriage Act filed by the revisionist seeking divorce from Smt. Hemlata have been clubbed together and decided by common judgment and order. He next submitted that revisionist has been paying maintenance to wife Smt. Hemlata under Section 125 Cr.P.C. as well as in proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005. In application under Section 125 Cr.P.C. filed by Km. Mahima through her mother the natural guardian Smt. Hemlata, Km. Mahima was awarded interim maintenance earlier at the rate of Rs.3,000/- per month vide order dated

30.01.2020 and subsequently at the rate of Rs.4,000/- per month as per impugned order. He next submitted that revisionist has already paid Rs.2,50,000/- to his daughter Km. Mahima towards arrear of maintenance.

5. He next submitted that it is wrongly stated on behalf of the original applicant/respondent No.2 that revisionist is possessed of 80 bigha agricultural land, whereas in evidence this fact has surfaced that revisionist is not possessed of any agricultural land in his own name and his father owns around 25-30 bigha agricultural land. Revisionist helps his father in agricultural activities and also drives tractor of some other persons through which he earns Rs.4,000/- to Rs.5,000/- per month. The amount awarded in the impugned order is exorbitant.

6. The revisinist is a man of limited source of income. Out of his earnings the revisionist has to pay Rs.3,000/- per month as interim maintenance in proceedings under Section 125 Cr.P.C. and Rs.3,000/- per month under Section 12 of the Protection of Women from Domestic Violence Act also. He further submitted that keeping in view the 3 judgment of this Court in Criminal Revision No.3562 of 2013 (Anup Kumar Srivastava Vs. State of U.P. and another) decided on 15.07.2016 the impugned judgment and order is liable to be set-aside, as the matter deserves to be remanded to the Court below to decide the petition under Section125 Cr.P.C. a fresh.

7. Per contra, learned counsel for the respondent No.2 submitted that there is no irregularity, illegality or perversity in the impugned order passed by the learned court below. In the judgment of this Court in Criminal Revision No.3562 of 2013, on which reliance has been placed is not applicable to facts of present case where no points of determination are framed with regard to case under Section 125 Cr.P.C. which was clubbed together with a Matrimonial case under Section 13 of Hindu Marriage Act.

8. So far as application under Section 125 Cr.P.C. is concerned the court below has framed five points of determination that relates to the application under Section 125 Cr.P.C. one point of determination has been framed for case under Section 13 of Hindu Marriage Act.

9. In the present case, revisionist is possessed of sufficient means to pay an amount awarded to his daughter as maintenance in the impugned judgment. The maintenance is itself on lower side and no interference is warranted in the impugned order.

10. Learned counsel for the respondent No.2 placed reliance on a of Hon'ble Supreme Court in N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha in Civil Appeal No. 4894 of 2022, decided on 18 July, 2022 and submitted that Hon'ble Supreme Court in paragraph No.12 of the said judgment directed clubbing of the three cases, so that a common order may be passed by the concerned Family Court at Chennai. Out of these three cases one case filed by the husband of original applicant was for 4 restitution of conjugal rights under Section 9 of the Hindu Marriage Act, the other was filed by the applicant under Section 125 Cr.P.C. and third one was filed by the applicant for pendent-lite maintenance under Section 24 of the Hindu Marriage Act. Hon’ble Court also held it just and proper to club all the three cases together to avoid multiplicity of proceedings and conflict of decisions in trial of same issues. The three cases clubbed together should be tried by the same judge.

11. Learned counsel for the revisionist placed reliance on judgment of this Court in Criminal Revision No.3562 of 2013 (Anup Kumar Srivastava Vs. State of U.P. and another) wherein two cases, out of which one case under Section 125 Cr.P.C, and the other under Section 13 of the Hindu Marriage Act were clubbed together vide order dated

19.10.2013 passed by Principal Judge, Family Court, Gorakhpur. Whereby revisionist was directed to pay maintenance to the applicant wife since 01.10.2013.. Out of two consolidated cases learned Family Court on the other hand allowed the application under Section 125 Cr.P.C. in Case No.459 of 2007 (Smt. Archana Srivastava Vs. Anup Srivastava) and on the other hand dismissed the application under Section 13 of the Hindu Marriage Act filed by the husband seeking divorce.

12. It is further submitted on behalf of respondent that since both the petitions arises out of matrimonial dispute between the parties in family court was competent and having jurisdiction to decide both the cases, and passed the order of consolidation of both the petitions and a common judgment was delivered. This Court observed as under:- “It is important to refer that divorce petition under Section 13 of the Act is of purely civil in nature and is governed by the Code of Civil Procedure (in short, 'CPC') while the maintenance petition under 5 Section 125 Cr.P.C. is governed by Chapter IX of the Cr.P.C. which itself is a self contained and is of summary in nature. The nature and scope of evidence required for the final adjudication of both the petitions are of different nature. There cannot be any manner of doubt that the provisions contained in C.P.C. are fully applicable for the suits and proceedings other than the proceeding under Chapter IX of the Cr.P.C. as provided under Section 10 of the Family Court Act, 1984. Perusal of Section 19 contained in Chapter V of the Family Court Act, 1984 shows that appeal is provided against the judgment and order passed under Section 13 of the Hindu Marriage Act while revision is provided against the order passed under Section 125 Cr.P.C. Therefore, nature of both the petitions are different, one is covered by the C.P.C. and another maintenance petition is covered by the Cr.P.C. As the platform being entirely different, taking into consideration the facts and circumstances of the case as above stated the order of consolidation of both the petitions, i.e. divorce petition and maintenance petition by a common judgment is procedurally erroneous and cannot be sustainable in the eye of law. Therefore, I find substance in the argument advanced by the learned counsel for the revisionist on this point. Apart from it, as per Section 125 Cr.P.C. if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children, whether married or not, and his father or mother, unable to maintain themselves, the Court (Magistrate of the first class) may, upon proof of such neglect or refusal, direct such person to make monthly allowance and to pay the same to such persons from time to time. It is settled proposition of law that a wife is entitled to maintenance only when she is unable to maintain herself and for grant of maintenance under Section 125 Cr.P.C. following are the requirements which ought to be appreciated :- (i) legally wedded wife (ii) wife is living separately for sufficient reasons (iii) unable to maintain herself (iv) the husband must have neglected or refuse to maintain his wife 6 (v) income of the applicant (vi) income of the non-applicant. In the light of the above proposition I have perused the impugned judgment and order which shows that point for determination for grant of maintenance, which is required, had neither been framed nor parties were directed to adduce the evidence on the point of neglection or refusal by the husband nor on the point that wife is unable to maintain herself and without arriving at a definite conclusion about the income of the applicant and income of the non-applicant the maintenance allowance was ordered to be paid by the husband which is also on the higher degree of Rs.5,000/- per month. The relief of maintenance has been granted only on the basis of surmises and conjectures and in inner page 14 of the judgment it sounds that in the affidavit of D.W.1 and D.W.2 it has been observed by the court below that income from the business of husband has not been specifically and categorically stated in the affidavit. What I observed is that since no point of determination as required for grant of maintenance under Section 125 Cr.P.C. the petition no.459 of 2007 has been framed, therefore, parties were not in a position to adduce the evidence as required for disposal of the petition under Section 125 Cr.P.C. Accordingly, I am of the opinion that the impugned order is perverse under the facts and circumstances of the case and cannot be said to be legal, just and proper. The court below has committed a manifest error in passing the impugned order. Accordingly, this revision is allowed and remitted back to the court below for decision afresh giving an opportunity of hearing to both the parties to adduce evidence and decide petition under Section 125 Cr.P.C. separately as observed above. However, at the time of admission of this revision in this Court, the revisionist was directed to pay a sum of Rs.3000/- per month as maintenance vide order dated 16.1.2014. Accordingly, the revisionist is directed to pay a sum of Rs.3000/- per month as maintenance till the final disposal of petition under Section 125 Cr.P.C. before the court below.”

13. In the judgment of this Court in Criminal Revision No.3562 of 2013 has been relied upon by the revisionist, no point of determination 7 as required for grant of maintenance under Section 125 Cr.P.C. was made by learned family court. Whereas in the present case five points of determination are made by learned family court with regard to case under Section 125 Cr.P.C. which has been clubbed together with divorce petition No. 139 of 2016 (Km. Mahima Vs. Prince Kumar) and only one point of determination has been made with regard to petition under Section 13 of the Hindu Marriage Act.

14. In this backdrop, this court observed that since no point of determination as required for grant of grant of maintenance under Section 125 Cr.P.C. has been framed, parties are not in a position to adduced their evidence as required for disposal of the petition under Section 125 Cr.P.C. Inasmuch as in the present case no prejudice could be shown on behalf of the revisionist in regard to consolidation of two cases, one under Section 13 of the Hindu Marriage Act and the other under Section 125 Cr.P.C. deciding both the cases simultaneously by common judgment out of which latter is assailed before this Court in present revision.

15. Hon’ble Supreme Court in N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha (supra) and submitted that Hon'ble Supreme Court in paragraph No.12 of the said judgment directed clubbing of the three cases by family court and same be decided by same court and same judge in order to avoid conflicting decisions. The amount of maintenance awarded in the impugned order is also not exorbitant and it is reasonable and in no case exorbitant or excessive.

16. Keeping in view the totality of the facts and circumstances of the case and taking into consideration the State of law in the judgments cited above. I find no illegality, irregularity or perversity in the 8 impugned order passed by learned court below by granting maintenance to respondent No.2 in said maintenance cases.

17. The revision is revision is devoid of merit and deserves to be dismissed. Order Date :- 23.1.2025 Ashish/- ASHISH KUMAR SINGH High Court of Judicature at Allahabad