IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 96 of 2008 Rajesh Upadhyay S/o Late Shri Cheetanand Upadhyay Manager, Programming Database, RCC Building, Apnante Section Rob II Baroda, ………..…Revisionist/Husband Versus 1. Smt. Mithlesh Upadhyay, w/o Rajesh Upadhyay 2. Km. Rimmi Upadhyay, D/o Rajesh Upadhyay 3. Km. Rakshita Upadhyay, D/o Rajesh Upadhyay, 4. Master Shardul Upadhyay S/o Rajesh Upadhyay, All R/o Village and post Nehru Gram (Rai Sahab Nityanand Niwas( Dehradun) ……..…Respondents/Applicants. Shri S.K. Jain , Advocate present for the revisionist. Shri V.K Kohli, Senior Advocate, assisted I.P. Kohli, Advocae, for the respondent 1-4. alongwith Criminal Revision No. 105 of 2008 1. Smt. Mithlesh Upadhyay, w/o Rajesh Upadhyay 2. Km. Rimmi Upadhyay, D/o Rajesh Upadhyay 3. Km. Rakshita Upadhyay, D/o Rajesh Upadhyay, 4. Master Shardul Upadhyay S/o Rajesh Upadhyay, All R/o Village and post Nehru Gram 2 (Rai Sahab Nityanand Niwas( Dehradun) ……..…Revisionists. Versus Rajesh Upadhyay S/o Late Shri Cheetanand Upadhyay Manager, Programming Database, RCC Building, Apnante Section Rob II Baroda, ………..…Respondent Shri V.K Kohli, Senior Advocate, assisted I.P. Kohli, Advocate for the revisionists 1-4. Shri S.K. Jain , Advocate present for the respondent. Hon’ble Prafulla C. Pant, J. Both these revisions are directed against the same judgment or order dated 14.05.2008, passed in case No. 32 of 2007, by Principal Judge, Family Court, Dehradun, whereby said court has directed that Rajesh Upadhyay (husband) to pay maintenance at the rate of Rs. 5,000/- per month to each one of the four namely Mithlesh Upadhyay (wife) Km. Rimi (daughter), Rakshita(daughter) and master Shardul(son) under section 125 of Cr.P.C. 3 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that Rajesh Upadhyay got married to Mithlesh on 2.10.1989. Out of the wedlock three children namely Rimi, Rakshita and shardul were born. The wife and the three children moved an application under section 125 of Cr.P.C. alleging that Rajesh Upadhyay having means, has neglected to maintain them, and they are unable to maintain themselves. It is pleaded by them that Rajesh Upadhyay has earning of Rs. 50,000/- per month as salary from Oil and Natural Gas Commission (the establishment in which he works) and they have prayed that maintenance be awarded at the rate of Rs. 5,000/- for each one of them. 4. Shri Rajesh Upadhyay filed written statement before the trial court and pleaded that his wife and children who have sought maintenance are living in his house and he is already making payment to them at the rate of Rs. 10,000/- per month to maintain them. He has further pleaded that he has also left ‘Maruti’ car for them apart from T.V.S. 4 scooty. It is also pleaded by him that he had to leave his house on account of his transfer from Dehradun to Assam in the year 2001, where after he has now been transfered to Gujarat. 5. The trial court, after recording evidence and hearing the parties, found that Rajesh Upadhyay is liable to pay maintenance at the rate of Rs. 5,000/- per month to his wife and Rs. 5,000/- to each of three children, and accordingly passed the impugned order dated 14.05.2008, in case No. 32 of 2007. The wife and three children in their revision have prayed for enhancement of the maintenance. Rajesh Upadhyay in his revision has pleaded for setting aside of the order passed by the Principal Judge, Family Court, Dehradun, on the ground that by the mutual consent his wife is living in his house separately from him and as such not entitled to any maintenance. 6. As far as the criminal revision No. 105 of 2008 filed by Mithlesh Upadhyay and others, for enhancement of maintenance is concerned, the same is liable to be dismissed out right on the ground that they have prayed 5 in their application for the maintenance only at the rate of Rs. 5,000/- per head which has been granted by the trial court as such there is no question of further enhancement i.e. more than what they prayed in their application. 7. Now I come to the criminal revision No. 96 of 2008, Sub-section (4) of the section 125 of Cr.P.C. provides that no wife shall be entitled to receive any allowance for the maintenance from her husband if she is living in adultery, or that without sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent. It has come on the record in para 17 of the statement of P.W.1 Mithlesh Upadhyay, that she lives in her husband’s house in Dehradun. Para 17 of the statement of P.W.1 Mithlesh Upadhyay reads as under;- “esjh llqjky usg:xzke es gSA vkt Hkh eSa usg:xzke ls gh vkbZ gwWA ;g lgh gS fd eSa tgkW 'kknh gksdj vkbZ Fkh ogha jg jgh gwW tks esjs ifr ds ifjokj tuksa dk edku gSAesjs llqj dh e`R;q gks pqdh gSA lEifRr esa esjs ifr dk fgLlk gSA ;g dguk lghs gS fd eSa vius ifr ds edku esa okl dj jgh gwW”A 6 Not only this, in para 21 of her cross- examination she further admits as under;- ß esjs ifr ds uke Maruti 800 xkM+h gSA og xkM+h nsgjknwu esa gh esjs ikl [kM+h gSA xkM+h dh pkch esjs ikl gSA eSa xkM+h ugha pykrh gwWA------------------ In para 23 she further states;- ÞeSus fctyh ikuh dk dHkh dksbZ [kpkZ vnk ugha fd;k A+-------------------------- 8. In the next paras i.e. para 24 and 25 she further admits that she (Mithlesh Upadhyay) receives drafts from her husband. She has also stated that in February, 2007, she filed the present application under section 125 of Cr.P.C. and she continued to get drafts upto the August 2007, (i.e. even after filing of the application under section Cr.P.C.) 9. In para 15 of the written statement Rajesh Uapdhyay has given details of the drafts and amount sent to his wife and children. It is not denied that Rajesh Upadhyay has been transferred from Dehradun and living at the place of his transfer. After going through the evidence of both the parties this Court finds that it is a 7 clear case where the parties are living separately by mutual consent and Rajesh Upadhyay is already sending maintenance to his wife. As such this Court finds the trial has committed grave error of law in allowing the application of the wife and directing her husband to pay Rs. 5,000/- per month to her. 10. However, as far as the three children are concerned, they are living in their father’s house and some amount is already being paid by their father to them. But considering facts and circumstances of the case this Court finds that further payment of Rs. 3,000/- per month to each child would have met at the ends of justice. Directions to make payment of Rs. 3,000/- per month per head to each one of the three children is just and proper. 11. For the reasons as discussed above the criminal revision No. 105 of 2008, filed by Mithlesh Upadhyay and others is dismissed. Criminal Revision No. 96 of 2008 filed by Rajesh Upadhyay is partly allowed. The impugned order dated 14.05.2008, passed by 8 Principal Judge, Family Court, Dehradun in case No. 32 of 2007 is set aside to the extent it is directed that Rajesh Upadhyay shall pay Rs. 5,000/- per month to his wife. However, as to the children, the impugned order is modified to the extent that Rajesh Upadhyay shall pay Rs. 3,000/- per month to each of the three children. The maintenance shall be paid to the daughters till they are married or become the earning members. The maintenance shall be paid to the son till he attends the age of majority. The reduced amount of maintenance at the rate of Rs. 3,000/- to each of the children shall be paid in addition to the maintenance which was voluntarily being paid by Rajesh Upadhyay. In case he stops such voluntarily payment the quantum of maintenance at the rate of Rs. 5,000/-per month payable to each of the children shall not stands reduced and to that extent, on that condition, the trial court’s order shall not be treated to have been interfered with. (Prafulla C. Pant, J.) Dt:20.04.2010 parul 9 10