High Court · 2025

This criminal revision has been filed against the judgement and order dated 22.2.2021 passed by Additional Principal Judge, Family court, court no. 4, Allahabad whereby application under section 125 Cr.P.C. filed by the applicant Smt. Swapnil under section 125 Cr.P.C. has been partly allowed ex-parte and the opposite party has been directed to pay Rs. 15,000/- to the applicant no. 1 and Rs. 5,000/- to his minor daughter from the date of filing of application. The revisionist has also assailed the subsequent order dated 4.7.2023 passed by the court below on application under section 126 Cr.P.C. filed by the revisionist for setting aside the ex-parte judgement and order dated 22.2.2021 which has been dismissed by the impugned order. Heard learned counsel for the revisionist, learned counsel for respondent no. 2 and learned AGA for the State. Learned counsel for the revisionist submitted that learned court below allowed the application under section 125 Cr.P.C. filed by respondent no. 2 ex-parte and awarded maintenance to the applicant and her minor daughter total Rs. 20,000/- per month placing reliance on ex-parte evidence produced by the applicant. The opposite party is teacher in Baldeo Intermediate College, Badagaon, Varanasi. The opposite party failed to appear before the court below to cross examine the applicant as he suffered lungs ailment during corona period and he could not appear in the case. The court below proceeded ex-parte in the case. He further submitted that he filed an application under section 126 Cr.P.C. before the court below when he came to know about the ex-parte order dated 22.2.2021 but same was dismissed by the court below vide order dated 4.7.2023 on the ground that the impugned order has been passed on merits of the case and the objection filed by the opposite party has also been taken into consideration. The opposite party was also given an opportunity to tender his evidence in proceeding under section 125 Cr.P.C. but he could not avail the same. He next submitted that both the impugned orders are based on contrary to law and passed under conjecture and surmises and not sustainable under law and deserves to be set aside. He lastly submitted that there is ample averment in the written statement filed by the revisionist before the court below in support of the plea that the original applicant left the company of the revisionist without sufficient cause and shifted to her matrimonial home on her own volition. In these circumstances, she is not entitled to any maintenance and her claim is barred by section 125 (4) Cr.P.C. The revisionist is ready to pay maintenance to his daughter but claim of maintenance raised by the applicant Smt. Swapnil is neither maintainable nor acceptable to the revisionist. The matter was referred to family court, mediation centre by order of the court below but mediation failed on account of non cooperation of respondent no. 2 and mediation centre has observed in the order dated 20.7.2016 that husband wants to take wife alongwith him but she has refused to go with him, therefore, revisionist cannot be held to have neglected to maintain his wife and daughter as alleged in maintenance petition. Learned counsel further submitted that ex- parte divorce has been granted to the revisionist by order of the family court on 9.1.2019 and same was not challenged for long time by respondent no. 2 and when this issue was raised before the court on previous date, the respondent no. 2 filed a restoration application on 12.12.2024 before the court below to set aside the ex-parte judgement of divorce granted against her vide order dated 9.1.2024 and is still pending. Per contra, learned counsel for respondent no. 2 submitted that the impugned order has been passed on elaborate consideration of pleading of the parties and evidence appearing on record; the revisionist has subjected the respondent no. 2 to matrimonial cruelty and created an atmosphere in the home which was not congenial for respondent no. 2 for residing at her matrimonial place alongwith revisionist and she was compelled to leave her matrimonial place and shifted to her parental place; she is not having any independent source of income; the revisionist has wrongly stated that she earns Rs. 30,000/- per month by giving tuition and by working in some private establishment. This is admitted fact that the revisionist is teacher in a reputed college in Badagaon, Varanasi and he derived a handsome salary and the maintenance of Rs. 20,000/- awarded to the applicant for her maintenance and her minor daughter is in no way exorbitant necessary to make her both ends meet. the impugned order is perfectly in accordance with law and warrants no interference in present revision. The factual matrix of the case in brief are that the applicant Swapnil daughter of late Shivraj Singh has filed an application under section 125 Cr.P.C. against opposite party Ajeet Pratap Singh (present revisionist) with averment that she was married with opposite party on 28.6.2011 according to Hindu rites and rituals and after marriage she was sent to her matrimonial home on 29.6.2011; her widow mother had given Rs. 09 lakh cash, gold chain and other household items and gifts to opposite party and his family members in the marriage even then the opposite party and his family members were not satisfied and started demanding Rs. 10 lakh as additional dowry after the marriage; when she told this fact to her widow mother, she paid Rs. 70,000/- thrice to opposite party but even then they were not satisfied and started demanding Rs. 10 lakh to repay agriculture loan; the opposite party is a drunker person and taken loan from many people; he also used to torture her for demanding money from her mother and due to non fulfillment thereof they were harassing and torturing her; she was given beating by belt, kicks and fists by opposite party on 3.7.2013; she informed her maternal uncle Raj Kumar who came and took her to her parental place; the applicant has taken shelter of her parental place due to maltreatment and matrimonial cruelty practiced against her by the opposite party and his family members; she gave birth to a girl child on 23.10.2013, even then the opposite party and his family members did not visit her; the opposite party is posted as a teacher in Baldeo Inter college, Badagaon, Varanasi and gets salary of Rs. 35,000 to 40,000/- per month; he also possessed agricultural land in his native place and from where he earns around Rs. 60,000/-; she claimed Rs. 20,000/- as maintenance for herself and her minor daughter. Learned court below issued summon to opposite party, who appeared and filed written statement wherein he admitted date and factum of marriage but denied other allegation leveled against him and his family members; he stated in written statement that he loved his wife and daughter very much and took care of them but due to ill treatment given by his wife, the relationship between spouse got sour; the applicant used to roam outside without informing the opposite party and his family members and when they objected her, she threatened to them to implicate in false case; the applicant is qualified upto MBA and B.Ed; she gives tuition to children; her earning from difference sources is around Rs. 30,000/- per month; her mother is also posted in a bank and her monthly salary is around Rs. 45,000/-; her mother has nominated her as heir in her bank account prior to her marriage; the applicant has deserted opposite party of her own choice; he himself victim of cruel treatment given by his wife to him; she is not entitled to get any maintenance. Learned court below has framed five issues on the basis pleadings of the parties and material available on record that the applicant is legally wedded wife of opposite party; she is unable to maintain herself and her minor daughter; the applicant has shown her academic qualification as M.Sc, B.A., B.Ed but she is not posted anywhere; she lives at her parental place and depend on her mother for her necessity as well as for her minor child; her monthly earning is around Rs. 40,000/-; her daughter is around 07 years and she spend Rs. 10,000/- for her maintenance; learned court below has also given finding that the opposite party has neglected to maintain his wife and daughter; he possessed sufficient means to maintain his wife and daughter as from perusal of paper no. 35-kh (salary statement), his monthly salary appears to be Rs. 74,000/-; applicant is entitled to seek maintenance from her husband for herself and her minor daughter. With above discussion learned court below has awarded maintenance to the tune of Rs. 15,000/- and Rs. 5,000/- per month to the applicants respectively. On perusal of impugned order dated 22.2.2021 it appears that the revisionist had appeared and filed written statement before the court below but thereafter he become absent on various dates, on 23.3.2017 he filed application 23-kh for affording opportunity of hearing and same was allowed by the court below and last opportunity was given to him. On 23.5.2017 he filed application 24-kh which was objected by the applicant and said application was dismissed. On 23.5.2017 case was proceeded ex-parte against the opposite party; he filed recall application on 12.8.2018 which was allowed and order of ex-parte evidence / argument dated 23.5.2017 was dismissed; the parties were given opportunity to cross examine the witnesses but no cross examination was carried out on behalf of opposite party and on 29.11.2019 opportunity of cross examination was closed; the applicant has filed an affidavit and got her cross examined as PW-1; she also filed paper 35-kh/1, 35-kh/3 as salary statement and account statement of opposite party. The revisionist had filed an application under section 126 Cr.P.C. for setting aside the ex-parte judgement and order on the ground that he was not given proper opportunity of hearing in maintenance case no. 1015 of 2013 which was decided on

22.2.2021; he had become fragile during the period of Covid-19 and was apprehended to be affected by virus of Covid-19 due to which he could not appear before the court below to cross examine the applicant and could not produce the evidence in support of his defense. Learned court below dismissed the application for restoration under section 126 Cr.P.C. by order dated 4.7.2023 with observation that the impugned order has been passed on merits and the applicant Ajeet has been negligent during proceeding of the case and inspite of taking various opportunity he failed to appear and participate in hearing of the case. On perusal of material on record it is obvious that the impugned order dated 22.2.2021 as well as subsequent order dated 4.7.2023 passed on application under section 126 Cr.P.C. are well reasoned and supported with material on record. There is no illegality or perversity found in the impugned order. However, this fact is liable to be taken into consideration that the maintenance case was filed in the year 2013 and quantum of maintenance has been fixed in the impugned order vide order dated 22.2.2021 on the basis of salary statement of the revisionist for the year 2021, therefore, salary income of the revisionist would have been substantially less at the time of filing of application in the year 2013. Similarly during period of four years since passing of impugned order, salaried income of the revisionist could have been increased from Rs. 74,000/- to atleast more than Rs. 80,000/-, therefore, keeping in view the totality of facts and circumstances of the case, some deduction in arrears of maintenance is desirable in the larger interest of justice. Therefore, it is directed that the amount of maintenance awarded to the applicant from the date of filing of application under section 125 Cr.P.C. is reduced from Rs. 15,000/- to Rs. 10,000/- per month and for the applicant no. 2 it is reduced from Rs. 5,000/- to Rs. 3,000/- per month. However, the amount of maintenance from the date of judgement dated 22.2.2021 which is Rs. 15,000/- and Rs. 5,000/- to the applicants respectively, is not interfered with and same will be to be paid by the revisionist on regular basis. Apart from arrears of maintenance as modified in present revision and other terms and condition in the impugned order are not interfered with. The instant criminal revision stands partly allowed in respect of judgment dated 22.2.2021 and dismissed in respect of order dated 4.7.2023. DHIRENDRA KUMAR High Court of Judicature at Allahabad Order Date :- 8.1.2025/Dhirendra/

This criminal revision has been filed against the judgement and order dated 22.2.2021 passed by Additional Principal Judge, Family court, court no. 4, Allahabad whereby application under section 125 Cr.P.C. filed by the applicant Smt. Swapnil under section 125 Cr.P.C. has been partly allowed ex-parte and the opposite party has been directed to pay Rs. 15,000/- to the applicant no. 1 and Rs. 5,000/- to his minor daughter from the date of filing of application. The revisionist has also assailed the subsequent order dated 4.7.2023 passed by the court below on application under section 126 Cr.P.C. filed by the revisionist for setting aside the ex-parte judgement and order dated 22.2.2021 which has been dismissed by the impugned order. Heard learned counsel for the revisionist, learned counsel for respondent no. 2 and learned AGA for the State. Learned counsel for the revisionist submitted that learned court below allowed the application under section 125 Cr.P.C. filed by respondent no. 2 ex-parte and awarded maintenance to the applicant and her minor daughter total Rs. 20,000/- per month placing reliance on ex-parte evidence produced by the applicant. The opposite party is teacher in Baldeo Intermediate College, Badagaon, Varanasi. The opposite party failed to appear before the court below to cross examine the applicant as he suffered lungs ailment during corona period and he could not appear in the case. The court below proceeded ex-parte in the case. He further submitted that he filed an application under section 126 Cr.P.C. before the court below when he came to know about the ex-parte order dated 22.2.2021 but same was dismissed by the court below vide order dated 4.7.2023 on the ground that the impugned order has been passed on merits of the case and the objection filed by the opposite party has also been taken into consideration. The opposite party was also given an opportunity to tender his evidence in proceeding under section 125 Cr.P.C. but he could not avail the same. He next submitted that both the impugned orders are based on contrary to law and passed under conjecture and surmises and not sustainable under law and deserves to be set aside. He lastly submitted that there is ample averment in the written statement filed by the revisionist before the court below in support of the plea that the original applicant left the company of the revisionist without sufficient cause and shifted to her matrimonial home on her own volition. In these circumstances, she is not entitled to any maintenance and her claim is barred by section 125 (4) Cr.P.C. The revisionist is ready to pay maintenance to his daughter but claim of maintenance raised by the applicant Smt. Swapnil is neither maintainable nor acceptable to the revisionist. The matter was referred to family court, mediation centre by order of the court below but mediation failed on account of non cooperation of respondent no. 2 and mediation centre has observed in the order dated 20.7.2016 that husband wants to take wife alongwith him but she has refused to go with him, therefore, revisionist cannot be held to have neglected to maintain his wife and daughter as alleged in maintenance petition. Learned counsel further submitted that ex- parte divorce has been granted to the revisionist by order of the family court on 9.1.2019 and same was not challenged for long time by respondent no. 2 and when this issue was raised before the court on previous date, the respondent no. 2 filed a restoration application on 12.12.2024 before the court below to set aside the ex-parte judgement of divorce granted against her vide order dated 9.1.2024 and is still pending. Per contra, learned counsel for respondent no. 2 submitted that the impugned order has been passed on elaborate consideration of pleading of the parties and evidence appearing on record; the revisionist has subjected the respondent no. 2 to matrimonial cruelty and created an atmosphere in the home which was not congenial for respondent no. 2 for residing at her matrimonial place alongwith revisionist and she was compelled to leave her matrimonial place and shifted to her parental place; she is not having any independent source of income; the revisionist has wrongly stated that she earns Rs. 30,000/- per month by giving tuition and by working in some private establishment. This is admitted fact that the revisionist is teacher in a reputed college in Badagaon, Varanasi and he derived a handsome salary and the maintenance of Rs. 20,000/- awarded to the applicant for her maintenance and her minor daughter is in no way exorbitant necessary to make her both ends meet. the impugned order is perfectly in accordance with law and warrants no interference in present revision. The factual matrix of the case in brief are that the applicant Swapnil daughter of late Shivraj Singh has filed an application under section 125 Cr.P.C. against opposite party Ajeet Pratap Singh (present revisionist) with averment that she was married with opposite party on 28.6.2011 according to Hindu rites and rituals and after marriage she was sent to her matrimonial home on 29.6.2011; her widow mother had given Rs. 09 lakh cash, gold chain and other household items and gifts to opposite party and his family members in the marriage even then the opposite party and his family members were not satisfied and started demanding Rs. 10 lakh as additional dowry after the marriage; when she told this fact to her widow mother, she paid Rs. 70,000/- thrice to opposite party but even then they were not satisfied and started demanding Rs. 10 lakh to repay agriculture loan; the opposite party is a drunker person and taken loan from many people; he also used to torture her for demanding money from her mother and due to non fulfillment thereof they were harassing and torturing her; she was given beating by belt, kicks and fists by opposite party on 3.7.2013; she informed her maternal uncle Raj Kumar who came and took her to her parental place; the applicant has taken shelter of her parental place due to maltreatment and matrimonial cruelty practiced against her by the opposite party and his family members; she gave birth to a girl child on 23.10.2013, even then the opposite party and his family members did not visit her; the opposite party is posted as a teacher in Baldeo Inter college, Badagaon, Varanasi and gets salary of Rs. 35,000 to 40,000/- per month; he also possessed agricultural land in his native place and from where he earns around Rs. 60,000/-; she claimed Rs. 20,000/- as maintenance for herself and her minor daughter. Learned court below issued summon to opposite party, who appeared and filed written statement wherein he admitted date and factum of marriage but denied other allegation leveled against him and his family members; he stated in written statement that he loved his wife and daughter very much and took care of them but due to ill treatment given by his wife, the relationship between spouse got sour; the applicant used to roam outside without informing the opposite party and his family members and when they objected her, she threatened to them to implicate in false case; the applicant is qualified upto MBA and B.Ed; she gives tuition to children; her earning from difference sources is around Rs. 30,000/- per month; her mother is also posted in a bank and her monthly salary is around Rs. 45,000/-; her mother has nominated her as heir in her bank account prior to her marriage; the applicant has deserted opposite party of her own choice; he himself victim of cruel treatment given by his wife to him; she is not entitled to get any maintenance. Learned court below has framed five issues on the basis pleadings of the parties and material available on record that the applicant is legally wedded wife of opposite party; she is unable to maintain herself and her minor daughter; the applicant has shown her academic qualification as M.Sc, B.A., B.Ed but she is not posted anywhere; she lives at her parental place and depend on her mother for her necessity as well as for her minor child; her monthly earning is around Rs. 40,000/-; her daughter is around 07 years and she spend Rs. 10,000/- for her maintenance; learned court below has also given finding that the opposite party has neglected to maintain his wife and daughter; he possessed sufficient means to maintain his wife and daughter as from perusal of paper no. 35-kh (salary statement), his monthly salary appears to be Rs. 74,000/-; applicant is entitled to seek maintenance from her husband for herself and her minor daughter. With above discussion learned court below has awarded maintenance to the tune of Rs. 15,000/- and Rs. 5,000/- per month to the applicants respectively. On perusal of impugned order dated 22.2.2021 it appears that the revisionist had appeared and filed written statement before the court below but thereafter he become absent on various dates, on 23.3.2017 he filed application 23-kh for affording opportunity of hearing and same was allowed by the court below and last opportunity was given to him. On 23.5.2017 he filed application 24-kh which was objected by the applicant and said application was dismissed. On 23.5.2017 case was proceeded ex-parte against the opposite party; he filed recall application on 12.8.2018 which was allowed and order of ex-parte evidence / argument dated 23.5.2017 was dismissed; the parties were given opportunity to cross examine the witnesses but no cross examination was carried out on behalf of opposite party and on 29.11.2019 opportunity of cross examination was closed; the applicant has filed an affidavit and got her cross examined as PW-1; she also filed paper 35-kh/1, 35-kh/3 as salary statement and account statement of opposite party. The revisionist had filed an application under section 126 Cr.P.C. for setting aside the ex-parte judgement and order on the ground that he was not given proper opportunity of hearing in maintenance case no. 1015 of 2013 which was decided on

22.2.2021; he had become fragile during the period of Covid-19 and was apprehended to be affected by virus of Covid-19 due to which he could not appear before the court below to cross examine the applicant and could not produce the evidence in support of his defense. Learned court below dismissed the application for restoration under section 126 Cr.P.C. by order dated 4.7.2023 with observation that the impugned order has been passed on merits and the applicant Ajeet has been negligent during proceeding of the case and inspite of taking various opportunity he failed to appear and participate in hearing of the case. On perusal of material on record it is obvious that the impugned order dated 22.2.2021 as well as subsequent order dated 4.7.2023 passed on application under section 126 Cr.P.C. are well reasoned and supported with material on record. There is no illegality or perversity found in the impugned order. However, this fact is liable to be taken into consideration that the maintenance case was filed in the year 2013 and quantum of maintenance has been fixed in the impugned order vide order dated 22.2.2021 on the basis of salary statement of the revisionist for the year 2021, therefore, salary income of the revisionist would have been substantially less at the time of filing of application in the year 2013. Similarly during period of four years since passing of impugned order, salaried income of the revisionist could have been increased from Rs. 74,000/- to atleast more than Rs. 80,000/-, therefore, keeping in view the totality of facts and circumstances of the case, some deduction in arrears of maintenance is desirable in the larger interest of justice. Therefore, it is directed that the amount of maintenance awarded to the applicant from the date of filing of application under section 125 Cr.P.C. is reduced from Rs. 15,000/- to Rs. 10,000/- per month and for the applicant no. 2 it is reduced from Rs. 5,000/- to Rs. 3,000/- per month. However, the amount of maintenance from the date of judgement dated 22.2.2021 which is Rs. 15,000/- and Rs. 5,000/- to the applicants respectively, is not interfered with and same will be to be paid by the revisionist on regular basis. Apart from arrears of maintenance as modified in present revision and other terms and condition in the impugned order are not interfered with. The instant criminal revision stands partly allowed in respect of judgment dated 22.2.2021 and dismissed in respect of order dated 4.7.2023. DHIRENDRA KUMAR High Court of Judicature at Allahabad Order Date :- 8.1.2025/Dhirendra/