Kamlawati v. Umesh) under section
Case Details
Neutral Citation No. - 2025:AHC:22415 Court No. - 80 Case :- CRIMINAL REVISION No. - 5762 of 2023
Legal Reasoning
Revisionist :- Smt. Kamlawati Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Achlesh Chandra Mishra,Alauddin,Malik Aalmeen,Shubham Shukla Counsel for Opposite Party :- G.A. Hon'ble Ram Manohar Narayan Mishra,J. This criminal revision has been filed against the judgement and order dated 8.8.2023 passed by Additional Principal Judge, family court, Siddharth Nagar in maintenance case no. 150 of 2015 (Kamlawati vs. Umesh) under section 125 Cr.P.C. whereby learned court below has rejected application 4-kha filed by the applicant Kamlawati for interim maintenance. Heard learned counsel for the revisionist, learned counsel for respondent no. 2 and learned AGA for the State. Learned counsel for revisionist submitted that the applicant Kamlawati is legally wedded wife of respondent no. 2 Umesh; the applicant had filed initially an application for maintenance under section 125 Cr.P.C. registered as maintenance case no. 150 of 2015, new no. 202 of 2016 and same was decided ex-parte by judgement and order dated 17.12.2016, wherein, opposite party was directed to pay Rs. 5,000/- per month as maintenance to the applicant from the date of filing of application dated 15.4.2015. However, opposite party had filed an application under section 126 Cr.P.C. for setting aside the said ex-parte judgement and order; that ex-parte order was set aside and case was restored to its original number; during pendency of said maintenance case after restoration, the revisionist had filed an application 4-kha with affidavit seeking maintenance from the opposite party which was contested by opposite party before the court below; after considering objection filed by opposite party learned court below has dismissed the application for interim maintenance vide order dated 8.8.2023. He next submitted that learned court below has placed reliance on objection of respondent no. 2 which is based on contention that at the time of marriage, age of the applicant was 13 years whereas opposite party was around 20 years and due to huge difference between the age of spouse, their marital relationship could not work properly and on 6.2.1996 a compromise was effected between guardians of both spouse and the parties had agreed to dissociate their relationship and it was agreed that the applicant will get 4 number of ornaments and Rs. 9,500/- from the opposite party; it was also contended by respondent no. 2 before the court below that after dissolution of marriage through out of court compromise the applicant had married to one Baran Teli, resident of Nepal and lived together with him for 15 years as his wife; as Baran Teli was involved in moistest activity and leading a criminal life, he was killed in course of time; thereafter she came to her parental place after death of Baran Teli she filed an application under section 125 Cr.P.C. on 26.5.2011 against the opposite party, which was dismissed by the court below as compromise entered between the parties on 11.7.2011 and father of opposite party had executed a sale deed of 21,420 sq. feet land in favour of the applicant, which was dismissed in default on 25.3.2015. Learned court below has also observed in the impugned order that after dismissal of first application under section 125 Cr.P.C. in default, the applicant filed second application under section 125 Cr.P.C. on 15.4.2015. Learned counsel further submitted that both above facts are categorically denied by the applicant/ revisionist; she neither entered into compromise with respondent no. 2 for dissolution of her marriage nor she was married to some other person namely Baran Teli; learned court below has placed reliance on objection of respondent no. 2 without any substance and reliable document and gave a perverse finding that the applicant was living separately consequent upon a compromise entered between the parties and court has given a perverse finding that the applicant had lived with another person for 15 years as his wife, it implies that she lived in adultery; she also purchased a property for Rs. 2,50,000/- in the year 2011. Learned counsel further submitted that this is wrong to say that the revisionist was living separately from opposite party on mutual consent; it is also wrong to say that she is able to maintain herself; learned court below has dismissed application for interim maintenance without sufficient ground. He next submitted that if the case is remanded to the court below, the revisionist may be given some interim maintenance during pendency of application. Learned counsel submitted that the court below has dismissed the application for interim maintenance on placing reliance on some documents placed by opposite party without giving opportunity of rebuttal to the applicant/ revisionist; this fact is not denied that marriage of revisionist was solemnized with respondent no. 2 on said date; it is established from the record that their marriage was never dissolved by any competent court; it is also established by law that marriage cannot be dissolved by any settlement between the parties without decree of competent court in absence of any proof or valid document to contrary; the documents which were taken into consideration by the court below while dismissing the application for interim maintenance are yet to be proved on record as their authenticity is denied by the revisionist; the provision of interim maintenance is made to ensure some provision for maintenance to the applicant during pendency of application for interim maintenance under section 125 Cr.P.C.; no finding can be recorded at the stage of deciding application for interim maintenance on merits of the case as evidence has to be adduced by the parties in support of their respective contention and thus the impugned order is not liable to be sustained and deserves to be set aside. Per contra, learned counsel for respondent no. 2 submitted that finding of court below as stated above in the impugned order is based on documents filed by opposite party before the court below; findings recorded by the court below while dismissing application for interim maintenance are based on evidence on record and cannot be termed as perverse; the revisionist had herself got her first application dismissed on 25.3.2015 when alleged compromise entered between the parties. He next submitted that it would be in the fitness of things that if case is remanded to court below for deciding application for maintenance on merits, it may be directed for deciding in time bound manner. Considering the rival submissions of learned counsel for the parties and the evidence available on record, this Court is of considered opinion that the impugned order denying interim maintenance to the applicant is not sustainable and is liable to be set aside. Therefore, the impugned judgement and order dated 8.8.2023 passed by Additional Principal Judge, family court, Siddharth Nagar is set aside. The criminal revision is allowed. The respondent no. 2 is directed to pay Rs. 4,000/- per month as interim maintenance to the revisionist from the date of filing of application during pendency of application. Order Date :- 17.2.2025 Dhirendra/ Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad