ALLAHABAD HIGH COURT
CHETAN ANAND PARASHER ALIAS RAHUL SHARMA V STATE OF UP
CITATION;2015 CRLJ (NOC)468 ALL,2015 ALLMR(CRI)JOURNAL628
DATED; 23- 12-2014
(1) Heard learned counsel for revisionist Sri Ram Babu Sharma, Sri D.S. Pandey, learned counsel on behalf of respondent no. 2 and learned A.G.A. on behalf of State. Counter and rejoinder affidavits have been exchanged.
(2) This criminal revision stems from the judgment and order dated 9.9.2014 passed by Principal Judge, Family Court, Ghaziabad in Misc. Case No.537 of 2013 (Smt. Madhulika Sharma Vs.Chetan Ananad Parashar @ Rahul) whereby the maintenance request of respondent no. 2, Ms. Madhulika Sharma (wife) was denied but the minor son of revisionist and respondent no. 2 was awarded maintenance of Rs.15,000/- per month from the date of institution of application.
(3) The record discloses that marriage of revisionist was solemnized with respondent no. 2 on 4.11.2013 in accordance with Hindu rites wherein substantial amount of dowry was given. As usual the revisionist and his family members were not happy with the given dowry. The revisionist and his parents started coercing respondent no. 2 to extract Rs.5 lacs from her family but she was unable to fulfill their demand. This perceived insufficiency of dowry and non fulfillment of further dowry demand resulted in the ridicule, harassment and torture of respondent- wife. Meanwhile she gave birth to a son on 6.9.2014 but things did not improve. On the contrary torture and cruelty increased, therefore she informed her father and sister on 8.5.2006 who in turned reported the matter to the Police on 9.5.2006 at Ghaziabad (U.P.) and they rescued her from the clutches of in-laws at Bangalore. She (wife) was found in miserable condition and state of shock. Since then she is living with her parents. It is stated that the revisionist and his family members did not provide any financial support either to the respondent no. 2 or their minor son despite the fact that revisionist was drawing a handsome salary from a American Multinational Corporation.
(4) The revisionist denied all allegations and submitted that respondent no. 2 (wife) treated him discourteously and that; she is a fashionable woman who was not willing to do household chores. The revisionist further stated that respondent no. 2 is a graduate and is teaching in a school earning Rs.5000/- per month. She also earns additional amounts from tuition, sewing and paintings etc.
(5) After considering all evidence on record, trial court concluded that respondent no. 2 was earning almost Rs.19,117/- per month while the earnings of revisionist in the financial year 2010 was almost to the tune of Rs.10 lacs. The trial court also concluded that respondent no. 2 is not entitled of any maintenance because of her earnings while her son master Aryan is entitled of maintenance from his father. The trial court awarded Rs.15,000/- as maintenance to their minor son.
(6) Submissions have been made by the learned counsel for the revisionist that opposite party no.2 is residing away from her matrimonial house on her free will with her parents, without any rhyme and reason. It is further submitted that revisionist wants to keep opposite party no. 2 but she does not want to live with her husband. It was argued that the revisionist is not in a position to give such amount of maintenance to minor son, master Aryan. The court below has wrongly assessed the income of the revisionist while passing the impugned order. It was further argued that the trial court has allowed maintenance allowance to Master Aryan, minor son from the date of institution of application without assigning any specific reason.
(7) On the other hand, the learned AGA and counsel for respondent-wife have supported the impugned order and contended that the impugned order is just and legal and there is no illegality or infirmity and the present criminal revision is bereft of merit and is liable to be dismissed.
(8) I have gone through the impugned judgment and order and also other material on record. It is settled position of law that High Court will exercise its revisional power where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not support the conclusions of the lower court.
(9)As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely.
(10)In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon'ble Supreme Court in "State of Kerala Vs. Putthumana ILLath Jathavedan Namboodiri," AIR 1999 SC 981, has held that the High Court while hearing revisions does not work as an Appellate court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.
(11)Hon'ble the Apex Court in "Jagannath Chaudhary Vs. Ramayan Singh", AIR 2002 SC 2229, has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. In "Munna Devi Vs. State of Rajasthan and others" AIR 2002 SC 107, it has been further held that while exercising the revisional power the High court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do.
(12) Learned counsel for revisionist has submitted that the trial court should not have awarded Rs.15,000/- as maintenance in view of U.P. Act No. 36 of 2000 as passed by the Uttar Pradesh Legislature incorporating the words Rs.5000/- in place of Rs.500/-prevailing then. He submitted that ceiling of Rs.500/- was in operation for the maintenance amount under Section 125 Cr.P.C. prior to the U.P. Amendment Act No. 36 of 2000. The ceiling of Rs.500/- was substituted by the ceiling of Rs.5000/- by State Legislature by the said amendment. He further submitted that this amendment received the assent of Governor on 5th December,2000. It is submitted by learned counsel for revisionist that in view of this State Amendment, trial court should not have awarded more than Rs.5000/- as maintenance. He also argued that the Criminal Procedure Code is a part of concurrent list of Indian Constitution and the State amendment shall have predominant effect on this Act.
(13) This argument of learned counsel for the revisionist is misconceived. Admittedly, the Criminal Procedure Code is a part of concurrent list (List III) seventh schedule of the Indian Constitution which gives concurrent power to Union and State Legislature over 52 items as such, criminal law and procedure, civil procedure, marriage, contracts etc. In case of overlapping of matters, as between the three lists, predominance has been given to Union Legislature, under the Constitution as also under the Government of India Act, 1935. In case of conflict between law of a State and a law of Union in the concurrent sphere, the union list will prevail. The Union and State Legislature have a concurrent power with respect to the subject enumerated in List III. Therefore, the State Legislature has full power to legislate regarding these subjects, subject only to the provision in clause 2 of Article 254 of the Constitution i.e. provided the provisions of State Act do not conflict with those of any Central Act on the subject. It is trite law that in case of conflict between the State law and the Central law on concurrent list enacted with respect to the matters included in List III (Concurrent List), the law enacted by Parliament shall prevail.
(14) Evidently, the Code of Criminal Procedure was amended by Act No.50 of 2001 by Parliament whereby the ceiling of Rs.500/- in whole was deleted and no new ceiling was provided for maintenance under Section 125 Cr.P.C. This amendment received Presidential assent on 24th September, 2001. This subsequent amendment to Section 125 Cr.P.C. will prevail as far as omission of ceiling of the maintenance amount is concerned. It is pertinent to point out even the State Legislature has now deleted the ceiling imposed by the earlier Amendment Act i.e. U.P. Act No. 36 of 2000 by another Amendment Act, namely, U.P. Act No.15 of 2011 and now both Central as well as State Acts are inconsonance with each other as far as amount of maintenance under Section 125 Cr.P.C. is concerned. It is also pertinent to point out that the statement of objects and reasons prefaced with U.P. Act No.15 of 2011 passed by U.P. Legislature itself acknowledges that amendment of sub Section 1 of Section 125 Cr.P.C. and sub Section 1 of Section 127 Cr.P.C. of the Amending Act No.36 of 2000 has become redundant consequent upon the commencement of the Act No.50 of 2001 passed by Parliament. It would be appropriate to reproduce the U.P. Amending Act No.15 of 2011 which is hereunder:-
"The Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2011 (U.P. Act No.15 of 2011) (As passed by the Uttar Pradesh Legislature) An Act to amend the Code of Criminal Procedure, 1973 it its application to Uttar Pradesh
It is hereby enacted in the Sixty second Year of the Republic of India as follows-
Prefatory Note- Statement of Objects and Reasons.- A ceiling of rupees five hundred was prescribed in Section 125 and Section 127 of the Code of Criminal Procedure, 1973 (Act no. 2 of 1974). The said ceiling of Rupees Five Hundred was replaced by rupees five thousand by amending the said Code in its application to Uttar Pradesh by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1999 (U.P. Act No.36 of 2000). Since, in view of the cost of living index is continually rising, retention of a maximum ceiling was not considered to be justified by the Government of India, the said ceiling was removed by amending the said Code by the Code of Criminal Procedure (Amendment) Act, 2001 (Act No.50 of 2001). Consequent upon the said amendment by the Government of India, it has been considered necessary to remove the said ceiling of Rupees Five Thousand in the Code of Criminal Procedure, 1973 as applicable to Uttar Pradesh. It has, therefore, been decided to amend the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to remove the said ceiling and to omit the provisions regarding amendment of sub Section (1) of Section 125 and sub Section (1) of Section 127 of the said Act No. 36 of 2000 which have become redundant consequent upon the commencement of the said Act No.50 of 2001.
The Code of Criminal Procedure (Uttar Pradesh Amendment) Bill, 2011 is introduced accordingly.
1. Short title- This Act may be called the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 2011.
2. Amendment of Section 125 of Act No.2 of 1974- In Section 125 of the Code of Criminal Procedure,1973 as amended in its application to Uttar Pradesh hereinafter referred to as the principal Act in sub-section (6) the words ''not exceeding five thousand rupees'' shall be omitted.
3. Omission of redundant provisions.- Provisions of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1999 (U.P. Act No.36 of 2000) regarding amendment of sub section (1) of Section 125 and sub section (1) of Section 127 of the principal Act which have become redundant consequent upon the commencement of the Code of Criminal Procedure (Amendment) Act, 2001 (Act No.50 of 2001) enacted by Parliament, shall stand omitted."
(15) Therefore, it is apparent that the amendment of Section 125 Cr.C. by amending Act No.50 of 2001 will prevail as against the U.P. Amending Act No.36 of 2000 since 24th September 2001. In any case the U.P. Amending Act No.15 of 2011 itself has removed the ceiling of Rs.5000/- from Section 125 Cr.P.C. Section 125 Cr.P.C. is a part of procedural law. This petition under Section 125 Cr.P.C. has been decided on 9.9.2014, consequently, by both Amending Act ie. Central Amendment Act of No.50 of 2001 and State Amending Act 15 of 2011, the ceiling on the maintenance amount under Section 125 Cr.P.C. does not exist. Therefore, the arguments of learned counsel for revisionist on this score cannot be sustained.
(16) Another argument advanced by learned counsel for revisionist is that master Aryan, the minor son of revisionist was not made party in the original petition under Section 125 Cr.P.C. before the Family Court, Ghaziabad, therefore, the trial court could not have awarded the maintenance of Rs.15,000/- to his minor son. I am afraid this argument is also misconceived for the simple reason that the provision under Section 125 Cr.P.C. is a beneficial provision made precisely to provide instant relief to the estranged wife and the children of feuding couple. While it is true that the respondent no. 2 should have arrayed the minor son as party or the family court should have insisted on arraying the minor children as party in the instant petition. But family court is not denuded of its power to provide adequate relief to minor child merely because his/her parents have forgotten him/her if material on record shows requirement of such action.
(17) It should be kept in mind that Section 125 Cr.P.C. is enacted for social justice and specially to protect woman and children and also old and infirm parents and falls within the constitutional sweep of Article 14 re-enforced by Article 39 of the Constitution of India. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves.
(18) Evidently, the provision of Section 125 Cr.P.C. is not part of the civil litigation. These proceedings are summary in nature. If during the course of trial the court/family court comes to the conclusion that minor children are involved then the trial judge is empowered to provide maintenance amount to the minor children if pleadings and the evidence available on record disclose the requirements of such course of action. The trial court certainly has power to modify its relief according to the requirements in order to avoid multiplicity of litigations. In the instant case, respondent no. 2 has been denied maintenance on the ground that she is earning Rs.19,117/- per month but the minor son of revisionist and respondent no. 2 is certainly entitled of maintenance from his father for the simple reason that amount of Rs.19117/- per month is not sufficient for both respondent no. 2 and their minor son especially in the expensive city like Ghaziabad.
(19) Indisputably, Master Aryan is biological son of the revisionist. The trial court has recorded finding that minor son is entitled of maintenance amount from her father who naturally is unable to maintain himself. Therefore, it is incumbent upon the revisionist to provide financial succor to his minor son. Had the minor son been living with revisionist, he would have had to spend at least this much amount on him. Therefore, it cannot be said that exorbitant amount has been allowed by the concerned court considering the substantial income of father (revisionist). To my mind awarded maintenance allowance to the minor son from the date of institution of application is wholly justified.
(20) Considering the facts and circumstances of the case, I find no scope for interference in the impugned order. The impugned order is well in conformity in law and does not suffer from material illegality, irregularity, perversity and jurisdictional error.
(21) The Criminal Revision is devoid of merit and is liable to be dismissed. It is accordingly dismissed.
(22) Let a certified copy of this order be sent to concerned court through Sessions Judge Ghaziabad.