VIVEK KAUSHALversusState of U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 482 No. - 37968 of 2024

Vivek Kaushal
                                                            .....Applicant(s)
                                   Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                     :   Ankit Srivastava
Counsel for Opposite Party(s)                :   Girish Singh, G.A.

Court No. - 81
                  HON'BLE CHAWAN PRAKASH, J.

1. Heard Sri Ankit Srivastava, learned counsel for applicant, Sri Girish
Singh, learned counsel for opposite party No.2 and learned A.G.A. for the
State.

2. The present application under Section 482 Cr.P.C. has been filed for
quashing/setting aside the impugned order dated 12.8.2024 passed by the
Additional Principal Judge, Family, Court, Kanpur Dehat in Case No.970
of 2023 under Section 125 Cr.P.C., (Preeti Vs. Vivek Kaushal).

3. Learned counsel for the applicant submits that the marriage of the
applicant was solemnized with opposite party No.2 on 06.03.2023
at Hotel Moti Mahal Deluxe, Ashiyana, Lucknow, without any dowry. It
is submitted that this is the second marriage of both the applicant as well
as opposite party No.2. It is further submitted that opposite party No.2
instituted proceedings under Section 125 Cr.P.C. seeking maintenance
and also moved an application for interim maintenance. The applicant
filed his objection/reply to the said application. Thereafter, it came to the
knowledge of the applicant that opposite party No.2 had earlier filed a
divorce petition along with an application under Section 25 of the Hindu
Marriage Act claiming permanent alimony to the tune of Rs.2 crores
against her previous husband, Mr. Alok Dixit, before the Family Court,
Kanpur Nagar. It is submitted that the said proceedings were decided by a
common judgment and order passed by the Additional Principal Judge,
Family Court, Court No.3, Kanpur Nagar, whereby the petition filed by
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opposite party No.2 under Section 13 of the Hindu Marriage Act was
rejected, the counter-claim filed by her previous husband was allowed,
and a decree for dissolution of marriage was passed. It is further
submitted that the claim for permanent alimony was partly allowed and a
sum of Rs.8,00,000/- was awarded to opposite party No.2.

4. Learned counsel for the applicant further submits that against the
aforesaid judgment and decree, opposite party No.2 filed First Appeal No.
26 of 2020 before this Court, which has been admitted and is still pending
for disposal. It is, therefore, contended that the previous marriage of
opposite party No.2 has not attained finality of dissolution and, as such,
she cannot be said to be the legally wedded wife of the applicant. It is also
submitted that opposite party No.2 concealed the aforesaid material facts
while instituting proceedings under Section 125 Cr.P.C. It is next
submitted that opposite party No.2 is a highly educated lady and is
earning approximately Rs.1,80,000/- per month, but the learned Family
Court failed to consider the said aspect while allowing the application for
interim maintenance and directing the applicant to pay a sum of
Rs.15,000/- per month. It is, thus, argued that the impugned order has
been passed by the learned Additional Principal Judge, Family Court, in
an arbitrary and mechanical manner, and is therefore liable to be set
aside. It is further prayed that the amount of interim maintenance already
paid by the applicant to opposite party No.2 may be adjusted towards the
final amount of maintenance.

5. Per contra, learned counsel for opposite party No.2 has opposed the
submissions advanced on behalf of the applicant. It is contended that the
marriage of opposite party No.2 was solemnized with the applicant and,
thereafter, the applicant started neglecting, harassing and torturing her on
account of additional demand of dowry. It is further contended that, on
account of such harassment and neglect, opposite party No.2 filed an
application under Section 125 Cr.P.C. seeking maintenance, along with an
application for interim maintenance. It is submitted that the applicant is
employed in a multinational company and is earning approximately Rs.3
lakhs per month. It is thus argued that the learned Family Court has
rightly allowed the application for interim maintenance and has
committed no illegality in passing the impugned order.
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                                    6. Having considered the rival submissions and upon perusal of the
                                    material available on record.

                                    7. It is an admitted position between the parties that the present marriage
                                    is the second marriage of both the applicant and opposite party No.2. It
                                    also transpires from the record that opposite party No.2 filed an
                                    application under Section 125 Cr.P.C. seeking maintenance and, during
                                    pendency of the said proceedings, also moved an application for interim
                                    maintenance, which has been allowed by the learned Family Court,
                                    directing the applicant to pay a sum of Rs.15,000/- per month to opposite
                                    party No.2. The learned Family Court, while deciding the application for
                                    interim maintenance, recorded a finding that the applicant failed to bring
                                    on record any cogent material to establish the income of opposite party
                                    No.2, as alleged by him. So far as the submission regarding the previous
                                    marriage of opposite party No.2 and pendency of the first appeal is
                                    concerned, the same involves disputed questions of fact and law, which
                                    may be considered by the learned Family Court at the stage of final
                                    disposal of proceeding under Section 125 Cr.P.C.

                                    8. It is well settled that an able-bodied husband is presumed to be capable
                                    of earning sufficient means to maintain his wife. In the facts and
                                    circumstances of the present case, this Court does not find any such
                                    manifest illegality, perversity or arbitrariness in the impugned order.

                                    9. Accordingly, the present application lacks merit and is, accordingly,
                                    dismissed.

                                    10 However, it is provided that the amount of interim maintenance, if
                                    already paid by the applicant to opposite party No.2, shall be adjusted
                                    towards the final amount of maintenance, if any.



                                                                                        (Chawan Prakash,J.)
                                    March 25, 2026
                                    Md Faisal




Digitally signed by :-
MOHD FAISAL
High Court of Judicature at Allahabad