Major Ankur Gupta vs State Of U.P.

And Another on 20 August, 2019

Allahabad High Court

Major Ankur Gupta vs State Of U.P. And Another on 20 August, 2019
Bench: Pradeep Kumar Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. - 82

Case :- CRIMINAL REVISION No. - 535 of 2017

Revisionist :- Major Ankur Gupta

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Udai Chandani

Counsel for Opposite Party :- G.A.,Amrendra Nath Rai,Sanjay Singh

Hon'ble Pradeep Kumar Srivastava,J.

1. Heard Shri Uday Chandani, learned counsel for the revisionist, Shri Sanjay Singh, learned counsel
for opposite party no. 2 and learned A.G.A for the State.

2. This revision has been filed against the impugned judgement and order dated 18.01.2017 in
Criminal Misc. Case No. 1455 of 2014 passed by Principal Judge, Family Court, Bareilly by which
opposite party no. 2 (wife) has been awarded maintenance of Rs. 20,000/- per month since
15.12.2014.

3. Aggrieved by the impugned order this revision has been filed challenging the same, that the order
is arbitrary, illegal and against the provisions of Section 125 Cr.P.C. No effective opportunity was
provided to the revisionist before passing of the impugned order by the learned court below, order is
unjust and unsustainable in the eyes of law. Income of the wife has not been considered and the
evidence on that point has been ignored in a very cursory manner. There was no evidence against
the revisionist husband but the maintenance was awarded to the wife which is liable to be set aside.

4. Before the learned court below, the wife filed an application under Section 125 Cr.P.C claiming
that she was married on 07.03.2006 with the opposite party according to Hindu rituals and by their
wedlock two daughters were born who are applicant nos. 2 and 3, in respect of whom the wife has

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 Major Ankur Gupta vs State Of U.P. And Another on 20 August, 2019

made a request before learned court below for not awarding maintenance in favour of them as they
are getting Rs. 15,000/- per month each from their father. The wife has stated that behaviour of the
husband was not good and she was put to harassment and lastly she lived with him till 13.10.2014 in
Gaya Bihar from where he was transferred to Nagpur. He left her in Bareilly saying that he would
take her to Nagpur after making necessary arrangements. Thereafter, on 26.10.2014, the husband
came along with his parents and announced his decision not to take her along with her children with
him to Nagpur. Husband was not prepared to live with her and he sent an ex-parte divorce decree
which was obtained by him on the basis of false and fake allegations. The wife has no means of
livelihood whereas the husband is on a very good position in Indian Army and is drawing a salary of
about Rs. 1,00,000/- per month and in addition to that he has several facilities in terms of
subsidized fooding and travelling along with residence. He is liable to pay maintenance to her,
therefore, Rs. 30,000/- be awarded in her favour as maintenance.

5. Husband has admitted marriage in his written statement with the applicant/opposite party no. 2
and birth of two daughters out of their wedlock. He has further stated that he is a permanent
resident of Lucknow and his father Dr. Suresh Chand Gupta got retired from the post of C.M.O.
Applicant after marriage came to his parents and he found that her behaviour with parents and his
younger sister was very arrogant and cruel and she used to misbehave with them. He went with her
to Goa for honeymoon but she continued insisting to come back to Bareilly and she also misbehaved
with him. He was being mentally and physically harassed by his wife and even after the birth of two
daughters, she used to quarrel with his family members and she made complaints to his superior
officers. She is an educated women and has received education of B.Ed and M.B.A and she is
working as a teacher in a school and earning Rs. 15,000/- per month and by tuition also she is
earning and therefore, her income easily comes to Rs. 25,000/- per month, therefore, her
application is liable to be rejected.

6. It appears from the pleadings of the parties that the marriage between the two is an admitted fact.
It also appears that he has obtained divorce and at present the wife is living separately with her
parents. It is also admitted fact that the husband is working on a very high post in Indian Army and
it cannot be doubted that he must be drawing a very handsome salary. So far as maintenance to the
wife is concerned, it has been no where alleged by the husband that any maintenance is been
provided by him to the wife. Wife is living with her parents, therefore, the financial ability of the
husband to pay maintenance is established.

7. Only thing which has to be seen whether the wife has sufficient reason for living separately from
her husband and whether she has her own income which is sufficient for her living and livelihood.

8. Once, it is admitted that the husband has divorced applicant/opposite party no. 2 (wife) and has
entered into another marriage, it gives reasonable ground to the wife to live separately, her living
separately with her parents is totally justified.

9. It is pertinent to mention that Section 125 Cr.P.C is a measure of social justice and it is intended
to protect the wife and her children who has no means to maintain herself. It has been held in
Bhagwandutt Vs. Kamla Devi, AIR 1975 SC 83, that while assessing the amount of maintenance

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 Major Ankur Gupta vs State Of U.P. And Another on 20 August, 2019

under Section 125 Cr.P.C, the Magistrate is required to consider the standard of living and
background of the wife along-with the status of her family. The needs and requirements of the wife
should be in consonance with her own income, if any, and the earning of the husband and his
commitment as husband. In this case, there is no dispute with regards to fact that the husband has
sufficient means and income as he is highly posted in Indian Army. It is also pertinent to mention
that object of Section 125 Cr.P.C is to prevent destitution in wife who may have been even divorced.
The husband is under obligation to give maintenance to the divorced wife who by herself is not able
to maintain herself. It is husband's moral obligation which he owes to the society in respect of his
wife and children, so that they are not left beggared and to prevent destitution as without financial
support she may be driven to a life of vagrancy, immorality and crime for her subsistence.

10. It has been alleged by the husband that the wife is working in school and her income is Rs.
25,000/- per month. This fact was to be proved by the husband. From the perusal of the impugned
judgement, it appears that on the basis of evidence on record the learned court below found that the
allegation that the wife is having income as a school teacher has not been proved by cogent evidence
and in order to prove the same, no salary slip has been filed. He (husband) has relied on a
photograph which appears to have been of a school, in which the wife's picture has been shown and
on that basis the husband claims that his wife is a teacher in that particular school. Being a teacher
in a school is one thing but she is a teacher on some payment as alleged by the husband is entirely a
different thing. Only on the basis of picture of a school it cannot be established that she has her own
income as a teacher as alleged by the husband. Merely because the wife is educated, it cannot be said
that she is earning.

11. Husband has further relied on report of Pacific Detective Agency in which it has been mentioned
that the wife is a teacher and is drawing Rs. 12,000/- per month but the detective who has
submitted the report has not been examined in evidence. It is a report of a private detective and by
no means, it can be said that it is a document which is admissible in evidence without formal proof.
Therefore, detective report could also not help the contention of the husband that the wife is a
school teacher and is earning.

12. On the basis of above discussion, I find that in view of the status of the parties and the financial
capacity of the husband, the wife has been awarded maintenance of Rs. 20,000/- per month which
is by no means in higher side. It is personal responsibility of the husband to pay maintenance to the
wife whether the marriage continues or dissolved. Therefore, I find no material irregularity or
illegality in the impugned judgement nor there is any jurisdictional error. Revision has got no force
and is liable to be dismissed.

13. Revision is dismissed accordingly.

Order Date :- 20.8.2019 PS

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