Allahabad High Court: In a criminal revision preferred by the husband against the order passed by Principal Judge, Family Court, whereby the application under Section 125 of the Code of Criminal Procedure Code, 1973 (‘CrPC’) moved by the wife was partly allowed and the husband was directed to pay Rs.2,000/- per month to her from the date of application of maintenance, Renu Agarwal, J. while upholding the impugned order, said that the husband could not mention any irregularity or illegality in the impugned order, and by not paying any amount towards maintenance showed his negligent conduct to maintain his wife.
The husband submitted that after marriage the wife lived with him for only four days and went to her parental home. Thereafter, she again returned to her matrimonial house and lived there for ten days and filed a complaint against her husband under Sections 498-A, 323, 504, 506 of the Penal Code, 1860 (‘IPC’) and Section 3 read with Section 4 of Dowry Prohibition Act, 1961.
Thereafter, the husband filed a suit under Section 9 of Hindu Marriage Act, 1955 (‘HMA’) for restitution of conjugal right, which is still pending. It was submitted that during the pendency of this case, the wife filed an application under Section 125 CrPC., which was allowed by the court below without considering the facts that application under Section 9 HMA moved by the husband is still pending. The Trial Court failed to consider that the wife left her in-laws house without valid reason and was residing at her parental house since 2016. Further, it was submitted that she is a graduate, teaching in a school and earning sufficient money, thus she can maintain herself.
The husband further submitted that he and his family members are dependent on the agriculture income, and he is doing labour work, and except that he has no source of income. Thus, the husband placed reliance on Section 125(4) CrPC., which provides that the wife is not entitled for any allowance from her husband if she is living in adultery or living separately without any sufficient reason.
Per contra, the wife submitted that her husband’s monthly income is about Rs.50,000/- per month, from his salary, the business of milk and milk products and from agricultural land. It was also submitted that impugned judgment passed by the Trial Court is in accordance with law, as she has been banished from her matrimonial house due to demand of dowry.
The Court said that there is clear evidence on the record that the husband is a healthy man and can earn money and is liable to maintain his wife. Placing reliance on Anju Garg v. Deepak Kumar Garg, 2022 SCC OnLine SC 1314, the Court said that even if it was presumed that the husband has no income from his job or from rent of Maruti Van, even then he is duty bound to provide maintenance to his wife. Further, if he engaged himself in labour work too, then also he may earn as an un-skilled laborer about Rs.350/- to Rs.400/- per day as a minimum wage.
Concerning the submission of husband that the wife is living in adultery, the Court said that no evidence is produced during trial that the wife is living in adultery. Also, if the husband wants to show the wife is living in adultery, he can move application under Section 127 CrPC for adequate relief.
The Court said that while going through all the liabilities towards husband’s family and looking at his assets, awarded very meager amount of Rs. 2000/- per month from the date of application and the arrears of maintenance are directed to be paid in five easy quarterly equal installments.
[Kamal v State of U.P, Criminal Revision No. 461 of 2023, Order dated 25-01-2024]
Advocates who appeared in this case :
Counsel for Revisionist: Advocate Arjun Singh Somvanshi
Counsel for Opposite Party: Government Advocate Salma Bano, Advocate Shresth Agarwal
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