Smt. Anita Gupta and another v. Ram Gopal Gopal), under Section

Heard learned counsel for the revisionists, learned counsel for the opposite party no. 2 as well as learned A.G.A. and perused the record. This criminal revision has been filed by the revisionists with prayer to set aside the impugned judgment and order dated 03.08.2024 passed by the learned Additional Principal Judge, Family Court, Court No. 1, Varanasi in Maintenance Case No. 219 of 2003 (Smt. Anita Gupta and another Vs. Ram Gopal @ Gopal), under Section 125 Cr.P.C. It is submitted by learned counsel for the revisionist that in this case, opposite party no. 2 is husband of revisionist no. 1 and father of revisionist no. 2. The marriage was performed in the year 1996 and the revisionist no. 2 was born from the wedlock in the year 1998. In the year 2000 the opposite party no. 2 ill treated the revisionist no. 1 and also expelled her from her sasural by beating, since then, she is living with her maternal uncle. She has no parents. She filed an application u/s 125 Cr.P.C. which was decided by the learned trial court vide order dated 03.08.2024 rejecting the claim of revisionist no. 1 and fixing the amount of Rs. 5000/- per month in favour of revisionist no. 2 till her attaining majority. Further submitted that the opposite party no. 2 committed fraud on the court and filed a case No. 75 of 2000 for divorce and by using imposter filed a compromise and obtained decree of divorce on the basis of compromise. This was the reason the learned trial court has rejected the claim of the wife in view of provisions as contained under sub-Section 5 of Section 125 Cr.P.C. It is also submitted that he filed restoration application but it was also rejected against which he has filed a writ petition before this Court. The wife/revisionist no. 1 is unable to maintain herself having no source of income, therefore, request to set aside the order passed by learned trial court dated 03.08.2024 and allow the maintenance to her and also enhance the amount of maintenance in favour of minor daughter till her marriage though the learned trial court has allowed the maintenance till the age of majority. Learned counsel for the opposite party no. 2 as well as learned A.G.A. opposed the prayer as aforesaid and contended that in this case, there is decree of divorce on the ground of compromise against the revisionist no. 1 and that is still effective. The revisionist no. 1 entered into compromise and compromise was filed before the learned court and she has also accepted Rs. 35,000/- from the opposite party no. 2 on the basis of which consent decree was passed between the parties. Consequently, an application filed by the wife/revisionist no. 1 before the learned court of Magistrate under Section 125 Cr.P.C. (Case No. 229/11 of 2002) was also withdrawn by her on that basis. Unless the decree is not being set aside by the competent court, it is effective and where the wife lives away from the husband with mutual consent, she cannot be said to be entitled for maintenance that is the reason the learned trial court has rejected the claim of the revisionist no. 1 for maintenance. So far as the amount of maintenance in favour of minor daughter is concerned, it is sufficient for her maintenance since the opposite party no. 2 is an unemployed person and works in a shop and earns meager income. He has no any regular income, therefore, the amount so fixed by the learned trial court cannot be increased. On considering the facts and circumstances of the case, submissions made by learned counsel for the parties as well as learned A.G.A., perusal of record and order passed by learned trial court, it appears that the revisionist no. 1 is living separate from the opposite party no. 2 and a case for divorce was filed by the parties which was registered as Case no. 75 of 2000 in which compromise was filed between the husband and wife on the basis of which it was decided finally and decree was passed. In pursuance to the terms of the compromise, the revisionist no. 1 received Rs. 35,000/- as lump sum amount of maintenance. She also withdrew the case, under section 125 Cr.P.C. which was filed by her as Case No. 229/11 of 2002 in the court of Magistrate. All these papers were filed before learned court and after considering the material on record, the learned trial court passed the order in question and rejected the claim of the revisionist no. 1 for maintenance. Unless the decree passed by the competent civil court is set aside or cancelled by the appellate court or some other competent court, it cannot be said to be illegal or having no force. In view of Section 125 Sub-clause 5 Cr.P.C. where the wife is living separate from the husband with mutual consent, she cannot be said to be entitled for maintenance. In this way, there appears no any illegality or impropriety in the order passed by the learned trial court to the extent of revisionist no.1/wife. So far as the claim of maintenance in favour of revisionist no. 2, the daughter is concerned, the learned trial court has fixed the amount of Rs. 5000/- in her favour. There is no any certain income established and there is no any other material showing that the opposite party no. 2 is making certain income, therefore, there appears no any ground to increase the amount of Rs. 5000/- in favour of daughter. It also appears that the learned trial court has passed the order allowing the maintenance to the daughter till her attaining majority which cannot be said to be just and proper, in view of observation made by this Court in Ravindra Maurya Vs. Mansha Devi an others, 2018 0 Supreme(All)367 that the daughter is entitled for maintenance till her marriage. To the extent the order passed by the learned trial court is modified and the amount of maintenance in favour of revisionist no. 2/daughter is to be paid by the opposite party no. 2 till her marriage. Accordingly, the present revisionist is partly allowed. Order Date :- 27.5.2025 Anurag Singh ANURAG SINGH High Court of Judicature at Allahabad

Heard learned counsel for the revisionists, learned counsel for the opposite party no. 2 as well as learned A.G.A. and perused the record. This criminal revision has been filed by the revisionists with prayer to set aside the impugned judgment and order dated 03.08.2024 passed by the learned Additional Principal Judge, Family Court, Court No. 1, Varanasi in Maintenance Case No. 219 of 2003 (Smt. Anita Gupta and another Vs. Ram Gopal @ Gopal), under Section 125 Cr.P.C. It is submitted by learned counsel for the revisionist that in this case, opposite party no. 2 is husband of revisionist no. 1 and father of revisionist no. 2. The marriage was performed in the year 1996 and the revisionist no. 2 was born from the wedlock in the year 1998. In the year 2000 the opposite party no. 2 ill treated the revisionist no. 1 and also expelled her from her sasural by beating, since then, she is living with her maternal uncle. She has no parents. She filed an application u/s 125 Cr.P.C. which was decided by the learned trial court vide order dated 03.08.2024 rejecting the claim of revisionist no. 1 and fixing the amount of Rs. 5000/- per month in favour of revisionist no. 2 till her attaining majority. Further submitted that the opposite party no. 2 committed fraud on the court and filed a case No. 75 of 2000 for divorce and by using imposter filed a compromise and obtained decree of divorce on the basis of compromise. This was the reason the learned trial court has rejected the claim of the wife in view of provisions as contained under sub-Section 5 of Section 125 Cr.P.C. It is also submitted that he filed restoration application but it was also rejected against which he has filed a writ petition before this Court. The wife/revisionist no. 1 is unable to maintain herself having no source of income, therefore, request to set aside the order passed by learned trial court dated 03.08.2024 and allow the maintenance to her and also enhance the amount of maintenance in favour of minor daughter till her marriage though the learned trial court has allowed the maintenance till the age of majority. Learned counsel for the opposite party no. 2 as well as learned A.G.A. opposed the prayer as aforesaid and contended that in this case, there is decree of divorce on the ground of compromise against the revisionist no. 1 and that is still effective. The revisionist no. 1 entered into compromise and compromise was filed before the learned court and she has also accepted Rs. 35,000/- from the opposite party no. 2 on the basis of which consent decree was passed between the parties. Consequently, an application filed by the wife/revisionist no. 1 before the learned court of Magistrate under Section 125 Cr.P.C. (Case No. 229/11 of 2002) was also withdrawn by her on that basis. Unless the decree is not being set aside by the competent court, it is effective and where the wife lives away from the husband with mutual consent, she cannot be said to be entitled for maintenance that is the reason the learned trial court has rejected the claim of the revisionist no. 1 for maintenance. So far as the amount of maintenance in favour of minor daughter is concerned, it is sufficient for her maintenance since the opposite party no. 2 is an unemployed person and works in a shop and earns meager income. He has no any regular income, therefore, the amount so fixed by the learned trial court cannot be increased. On considering the facts and circumstances of the case, submissions made by learned counsel for the parties as well as learned A.G.A., perusal of record and order passed by learned trial court, it appears that the revisionist no. 1 is living separate from the opposite party no. 2 and a case for divorce was filed by the parties which was registered as Case no. 75 of 2000 in which compromise was filed between the husband and wife on the basis of which it was decided finally and decree was passed. In pursuance to the terms of the compromise, the revisionist no. 1 received Rs. 35,000/- as lump sum amount of maintenance. She also withdrew the case, under section 125 Cr.P.C. which was filed by her as Case No. 229/11 of 2002 in the court of Magistrate. All these papers were filed before learned court and after considering the material on record, the learned trial court passed the order in question and rejected the claim of the revisionist no. 1 for maintenance. Unless the decree passed by the competent civil court is set aside or cancelled by the appellate court or some other competent court, it cannot be said to be illegal or having no force. In view of Section 125 Sub-clause 5 Cr.P.C. where the wife is living separate from the husband with mutual consent, she cannot be said to be entitled for maintenance. In this way, there appears no any illegality or impropriety in the order passed by the learned trial court to the extent of revisionist no.1/wife. So far as the claim of maintenance in favour of revisionist no. 2, the daughter is concerned, the learned trial court has fixed the amount of Rs. 5000/- in her favour. There is no any certain income established and there is no any other material showing that the opposite party no. 2 is making certain income, therefore, there appears no any ground to increase the amount of Rs. 5000/- in favour of daughter. It also appears that the learned trial court has passed the order allowing the maintenance to the daughter till her attaining majority which cannot be said to be just and proper, in view of observation made by this Court in Ravindra Maurya Vs. Mansha Devi an others, 2018 0 Supreme(All)367 that the daughter is entitled for maintenance till her marriage. To the extent the order passed by the learned trial court is modified and the amount of maintenance in favour of revisionist no. 2/daughter is to be paid by the opposite party no. 2 till her marriage. Accordingly, the present revisionist is partly allowed. Order Date :- 27.5.2025 Anurag Singh ANURAG SINGH High Court of Judicature at Allahabad