Smt. Mamta Kushwaha v. Bhagirath Kushwaha), under Section
Case Details
Neutral Citation No. - 2025:AHC:35135 Court No. - 80 Case :- CRIMINAL REVISION No. - 3919 of 2024 Revisionist :- Bhagirath Kushwaha Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rakesh Kumar Shukla Counsel for Opposite Party :- G.A.,Harish Chandra Mishra Hon'ble Ram Manohar Narayan Mishra,J. Instant criminal revision has been preferred against the judgement and order dated 7.5.2024 passed by Additional Principal Judge, Family Court, Jhansi in Petition No. 177 of 2020 (Smt. Mamta Kushwaha Versus Bhagirath Kushwaha), under Section 127 CrPC, whereby court below has enhanced amount of maintenance awarded to the applicant by Principal Judge, Family Court, Jhansi vide judgement and order dated 9.12.2016 from Rs. 2000/- per month to Rs. 4000/- per month, in exercise of powers under Section 127 CrPC. Heard learned counsel for revisionist, learned counsel for opposite party no. 2 and learned AGA for the State.
Legal Reasoning
Learned counsel for the revisionist has submitted that from the perusal of the evidence on record, it is quite clear that opposite party no. 2, who is wife of the revisionist has deserted the revisionist without any sufficient cause and claim of maintenance is barred under Section 125(4) CrPC. He next submits that opposite party no. 2 has admitted in her evidence before the Court below that she had embraced the order of Brahama Kumari Ashram where celibacy is observed as a matter of cred and this suggests that opposite party no. 2 herself left the company of revisionist to profess by the religious order of Brahama Kumaris. She has also stated in her cross- examination that she teaches meditation at Brahama Kumari Ashram. He next submitted that opposite party no. 2 is a qualified woman and she is a post graduate and she did her M. A. in English, whereas the revisionist had pursued vocational course from I. T. I., Jhansi in electric and welding trades. She has not filed any record of source of income of the revisionist. Revisionist is not in a position to pay enhanced maintenance at the rate of Rs. 4000/- per month and that too, from the date of filing of application for maintenance. He has further submitted that without determining the monthly income of the revisionist, opposite party no. 2 is not entitled to receive any maintenance as per the provisions of Section 125 (4) CrPC as she did not perform her matrimonial obligations from the very beginning and revisionist is deprived from matrimonial bliss. A girl child was born out of the wedlock of the parties, who died due to carelessness of respondent No. 2 and she has sought maintenance without proper justification. The revisionist never harassed or ill treated her. The allegations of matrimonial cruelty levelled against the revisionist are without any basis. Respondent No.2 is living separately from him since 2010. Revisionist had also filed a divorce petition under Section 13 of Hindu Marriage Act, which was registered as Case No. 11 of 2012 (Bhagirath Kushwaha Versus Smt. Mamta Kushwaha) on the ground of cruelty and desertion but the same was dismissed by the Family Court vide order dated 9.12.2016 against which, appeal filed by the revisionist is pending before this Court. Per contra, learned AGA as well as learned counsel for opposite party no. 2 submitted that the revisionist is having sufficient source of income and has declined to maintain his wife withut any reason. The amount of maintenance at the rate of Rs. 2000/- was awarded in the year, 2016, whereas since then rate of inflation has substantively increased and that resulted in devaluation of money. Therefore, enhancement of maintenance was needed and for that reason, opposite party no. 2 filed an application for enhancement of maintenance under Section 127 CrPC in the year, 2020 which has been allowed vide impugned judgement and order dated 7.5.2024. Revisionist has concealed his income to avoid payment of maintenance to original applicant. The respondent No.2 is not having any individual source of income. She resides in a rented house in the vicinity of her parental home. The finding of court below is well founded and well reasoned and is based on evidence on record, which needs no interference by this court in the present revision. Learned counsel for revisionist has placed reliance on the decision of a coordinate Bench this Court rendered in the Criminal Revision No. 4498 of 2022; Gaurav Vashishtha Versus State of U. P. and another, wherein revision preferred against the enhancement of maintenance was allowed on the ground that the claim was barred by Section 125 (4) CrPC, which provides that no wife shall be entitled for maintenance, is she has refused to live with her husband without sufficient cause. From perusal of material on record it appears that there is nothing to corroborate the instances of the revisionist that respondent No.2 had left him by her own sweet will and choice to embrace order of Brahma Kumari’s where physical union between husband and wife is discouraged. Learned counsel for the revisionist drew attention of the Court to statement of respondent No.2 that in her 12 years of marital life she has stayed with husband for 4 to 5 years. She lived with her husband from 06.06.2002 to 10.07.2010. She is living separately from her husband since 2010, on 24.09.2009 she had given birth to a girl child who died on 06.07.2010, to celebrate birth of daughter, her husband had organized a programme at his house which was duly celebrated. People of her parental side had also joined the programme and thereafter her husband dropped her at her parental place. She was receiving Rs.15,00/- as interim maintenance from her husband. She gives teaching of meditation free of cost and teaches at Geeta Pathshala Brahma Kumari Ashram. It is true that in Brahma Kumari Ashram the teaching which she imparts, the sexual relationship between husband and wife is not encouraged. She visited Mount Abu once, she has not visited Mount Abu alongwith her husband. She denied the suggestion given from the side of the revisionist that she had harassed her husband, by filing false report before police and never observed her matrimonial obligations. Only due to admission of fact that the revisionist used to teach meditation in some center of Brahma Kumari, it cannot be inferred that she had taken a vow of celibacy and deprived with her husband of sexual union with her. She had made specific pleadings and reduced evidence in support of a plea, that she was subjected to matrimonial cruelty, harassment and torture by her husband after performance of marriage. Her husband is ITI pass out. She is M.A. in English, but she is not gainfully employed anywhere. A suit of divorce is pending between the parties since 2002. Revisionist has stated that it is contended on behalf of the revisionist that he is unemployed, he any how manages to pay Rs.2,000/- as interim maintenance to the applicant. He is himself dependent for maintenance on his brother and victim of harassment and torture extended to him by his wife. His wife teaches in some private school and also carry out some marketing business and earns around Rs.30,000/- per month, but the revisionist failed to adduced any evidence in support of his plea with regard to earnings of respondent No.2. On perusal of material and evidence on record and also the impugned judgment and order, I find no perversity or substantial error in finding of fact recorded by learned court below with regard to matter under controversy between the parties. The revisionist has admitted that he did ITI for one year in building trade in 1989, which is a professional diploma course, he did intermediate in 1991. He also admitted that some ancestral land is lying at his native place in district Jhansi, in which his name is recorded as co-sharer. Learned trial court has rightly concluded that the revisionist is able to maintain his wife. The amount awarded as maintenance to the applicant in the impugned judgment and order is reasonable, just and fair and no interference is warranted in the present revision, therein. The revision is devoid of merit, and is liable to be dismissed. The revision is dismissed. Order Date :- 11.2.2025 HR/Ashish/- Digitally signed by :- HEMANT RANJAN High Court of Judicature at Allahabad