Allahabad High Court
SMT. VIJAY BHARTI AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- JAI KRISHNA UPADHYAY
Holding
The trial court’s order was erroneous; the maintenance was enhanced to Rs 15,000 for the wife and Rs 10,000 each for the minor daughters, arrears to be paid in four installments, and the major daughter was held ineligible for maintenance under Section 125.
Summary
The High Court considered a criminal revision filed by Smt. Vijay Bharti and her two minor daughters seeking enhancement of maintenance awarded under Section 125 of the Criminal Procedure Code against their husband, Prem Narayan Vyas, an accountant with GAIL. The trial court had fixed interim maintenance of Rs 11,000 for the wife and Rs 8,000 for one daughter, without accounting for the husband’s net salary, deductions, and family expenses. The petitioners argued that the husband’s earning capacity warranted a higher amount, while the husband contended that the court had already considered his net income of about Rs 87,000 and that he was unable to pay more. The Court examined precedents on the factors for fixing maintenance, the need to prevent destitution, and the principle that maintenance may be up to 25 % of the husband’s income, and also clarified that a major daughter is not eligible for maintenance under Section 125. The Court held the trial court’s order erroneous, enhanced maintenance to Rs 15,000 for the wife and Rs 10,000 each for the minor daughters, ordered arrears to be paid in four installments, and dismissed the claim of the major daughter. The revision was allowed and the order was set aside.
Issues considered
- Whether the trial court erred in fixing the quantum of maintenance without considering the husband’s net income and expenses.
- Whether the husband’s salary and deductions under the Right to Information Act should be taken into account for maintenance calculation.
- Whether a daughter who has attained majority is eligible for maintenance under Section 125 Cr.P.C.
- Whether the maintenance should be enhanced and arrears payable from the date of application.
Legislation cited
Subjects
- maintenance
- Section 125 CrPC
- interim maintenance
- enhancement of maintenance
- major daughter eligibility
- arrears
- family law
- criminal revision
- Right to Information Act
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 3161 of 2024
Smt. Vijay Bharti And 2 Others
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Revisionist(s) : Rohit Nandan Pandey
Counsel for Opposite Party(s) : G.A., Krishna Mohan Asthana
Court No. - 86
HON'BLE JAI KRISHNA UPADHYAY, J.
1. By means of the instant criminal revision, revisionists have assailed the
judgement and order dated 14.03.2024 passed by Additional Principal Judge,
Family Judge Court No.1, Kanpur Nagar in Case No. 1267 of 2019 (Smt.
Vijay Bharti and others vs. Premnarayan Vyas), under Section 125 Cr.P.C.
2. By the impugned order, the trial Court has awarded interim maintenance
of Rs. 11,000/- to the revisionist No.1 and of Rs. 8,000/- to the revisionist
No. 3 per month each under Section 125 Cr.P.C. The revisionists have
prayed in the revision for enhancement of maintenance allowance awarded
by the trial Court in their favour.
3. In view of the statement explained in para 6 of the counter affidavit, filed
by the respondent No. 2. It is cleared that the revisionist No.-2 Diksha Vyas
born on 28.02.2003, as per statement she is major. Hence, the Principle
Judge Family Court, Kanpur Nagar has not awarded any maintenance for
revisionist no. 2.
4. It has been submitted by the learned counsel for the revisionists that
before calculating the quantum of maintenance, the trial court has not taken
into consideration the salary of the opposite party No.2 (husband) and the
status of family. It has also been submitted that, opposite party No.2 is still
neglecting to maintain the revisionists, who are his wife and two minor
daughters. The revisionists are not capable to maintain themselves.
5. The revisionist No.1 has filed payslip of opposite party No.2, which was
provided by the GAIL (India) LIMITED, through Right to Information Act,
CRLR No. 3161 of 2024
2
2005 on 25.01.2023 by the Sri Ajay Rawat, Addl. Regional Manager and
Central Information Officer, GAIL INDIA LIMITED, by E-mail-
[email protected]. The same has been annexed as Annexure No.3 along
with supplementary affidavit. In statement of salary, the Net income of the
opposite party No.2 is shown as Rs. 94,360/-
6. Learned counsel for the revisionists has placed reliance on the following
judgments of the Hon’ble Apex Court as well as this Court:-
(i) Rajnesh vs. Neha and Another, (2021) 2 SCC 324.
(ii) Smt. Kuldeep Kaur and Another Vs. State of U.P. and Another, (2012) 3
JIC 522 (AII).
7. Per contra, learned counsel for the opposite party No.2 has opposed the
prayer of the revisionists and submitted that trial court has passed the
impugned order based on the evidence on record. It has also been submitted
that the trial court did not provide specific reasons for fixing the amount of
maintenance allowance. It was further submitted that opposite party No.2
who is posted as an E-1 Accountant Officer in GAIL is receiving a monthly
net salary of amount 87,279/- after compulsory deduction. Apart from that
opposite party no. 2 is ready and willing to bear the expenses of education
and marriages of both of the daughters.
8. Heard Sri Rohit Nandan Pnaday, learned counsel for the revisionists,
learned A.G.A. for the State and K.M. Asthana, learned counsel for opposite
party no.2
9. Factual matrix of the case, in brief, is that Smt. Vijay Bharti, who is
revisionist No.1 in this revision filed an application under Section 125
Cr.P.C. for herself and her two minor daughters. She alleged that, she was
married to opposite party No.2- Prem Narayan Vyas according to Hindu rites
and rituals on 18.11.2000 and that her parents have given sufficient dowry
and cash at the time of her marriage. After marriage, she began to live in her
matrimonial home, where her husband (opposite party No.2) and her in-laws
started harassing her for not providing additional dowry. Two daughters
were born from the wedlock of the revisionist and opposite party No. 2. On
06.05.2019 the revisionist was turned out of the matrimonial house by her
husband under a involving, conspiracy of his brother. On 08/05/2019, with
the help of the police, the applicant brought her children back to Kanpur and
began living in her in-laws' house in Kanpur, maintaining the house. All of
the applicant's jewellery and clothing remain in the possession of the
CRLR No. 3161 of 2024
3
defendant. The opponent fraudulently opened a factory in Noida Sector 7 E-
110 and fraudulently induced the applicant to sign and got the GST etc.
registered in the applicant's name, whereas the applicant has no knowledge
or information about the factory and no payment etc. has been made. On
14.07.2019 in the evening, the opponent along with his brother-in-law C.L.
Gahlor and Jaan ji came to the revisionist’s house and banged the gate
loudly and abused her. They threatened to kill her and said that get out of my
house otherwise I will kill you and your children. After some time they ran
away, using abusive language. The applicant has lodged a report of this
incident on 17.07.2019 in Police Station Chakeri, bearing Case Crime No.
646/2019 under sections 498A, 323,504,506,406,420 IPC and 3/4 DP Act.
10. Learned counsel on behalf of revisionist submitted that the revisionist is
a lady with two daughters (revisionist no. 2 and 3). After being evicted by
opposite party no.2 from his house, she begin living in a vacant, dilapidated
house belonging to opposite party no.2, which she cannot afford to maintain.
The elder daughter of O.P. No.2 (revisionist no.2, Diksha Vyas) living in the
aforesaid house and completed her B.C.A. in 2024; however, revisionist no.2
cannot afford the expenses of her daughter's MCA's degree. Opposite party
no.2 is refusing to provide funds for her to pursue this degree. Even though
he acknowledged this need during mediation. Revisionist nos. 1 and 2
appeared in mediation before this Hon'ble Court, where opposite party no.2
assured them that he would provide money for her to pursue MCA degree.
Despite this, he has done nothing today. His current instance that he is
willing to pay marriage expenses is unreasonable. O.P. No.2 is unwilling to
live with them or take take responsibility, and mediation failed due to his
lack of cooperation. Revisionist no.2 attempted to settle the issue at the
mediation centre, but no to avail.
11. Learned Counsel on behalf of opposite party No. 2, stated that on
08.05.2019, the revisionist no.1 along with her 3 brothers lodged false case
against the OP no 2 and managed to have him behind the bar at Police
Station Sector 24 NOIDA on the false and fabricated complaint under
Section 151/107/116 Cr.P.C. the OP no 2 remained in the lock-up and was
produced before the City Magistrate NOIDA in handcuff from where he was
granted bail on 09.05.2019 at 05:00 PM.
12. Learned Counsel for O.P. No. 2, further stated that on 06.02.2025 an
order was passed by the learned Additional Principal Judge, Family Court in
CRLR No. 3161 of 2024
4
Case No.1437 of 2024 U/S 125 of Cr.P.C., by which opposite party no.2,
apart from the Rs.19,000/- per month maintenance, was directed to pay a
sum of Rs. 16,000/- towards arrears, total amount of Rs.35,000/-per month
till the payment of entire arrears of Rs.3,88,000/- to the revisionists. The said
amount of Rs. 16,000/- per month is for the payment of arrears of
maintenance accrued due to enhancement of maintenance from Rs.16,000/-
to Rs.19,000/- from the date of application.
13. Learned Counsel for O.P. No. 2, further stated that it is wrongly alleged
by the revisionist no.1 that opposite party no.1 is earning more than Rs.
2,00,000/- per month. It is also submitted that after statutory deductions the
opposite party no.2 is left with payment of Rs.87,729/- per month, out of
which he is paying a sum of Rs.19,000/- per month towards maintenance and
additional amount of Rs.16,000/- per month towards arrears of maintenance.
The opposite party no.2 is residing in the rented house at Sadhunagar,
Meerut, where he is paying 18,750/- per month to the landlord including the
electricity charges and is further incurring huge expenses towards food and
convenience expenses. He is left with almost no money. He also stated that
despite these hardships, the opposite party no.2 is ready and willing to meet
marriage and education expenses of his two daughters. However the
revisionist no.1 is not allowing either to meet his daughters or even to talk to
them.
14. The provision of Section 125 Cr.P.C. provides for maintenance of wives,
children and parents. The Section 125 Cr.P.C. reads as under:-
“125.Order for maintenance of wives, children and parents.—
(1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable
to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who
has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate
of the First Class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such
child, father or mother, at such monthly rate as such Magistrate thinks fit,
CRLR No. 3161 of 2024
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and to pay the same to such person as the Magistrate may from time to time
direct: Provided that the Magistrate may order the father of a minor female
child referred to in clause (b) to make such allowance, until she attains her
majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means: Provided further that
the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such
person to make a monthly allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses of such proceeding which
the Magistrate considers reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as
far as possible, be disposed of within sixty days from the date of the service
of notice of the application to such person.
Explanation.—For the purposes of this Chapter—4
(a) “minor” means a person who, under the provisions of the Indian
Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;
(b) “wife” includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and
expenses of proceeding shall be payable from the date of the order, or, if
so ordered, from the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the
order, any such Magistrate may, for every breach of the order, issue a
warrant for levying the amount due in the manner provided for levying fines,
and may sentence such person, for the whole or any part of each month's
allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due
under this section unless application be made to the Court to levy such
amount within a period of one year from the date on which it became due :
CRLR No. 3161 of 2024
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Provided further that if such person offers to maintain his wife on condition
of her living with him, and she refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her, and may make an order under
this section notwithstanding such offer, if he is satisfied that there is just
ground for so doing.
Explanation.—If a husband has contracted marriage with another woman
or keeps a mistress, it shall be considered to be a just ground for his wife's
refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or
interim maintenance and expenses of proceeding, as the case may be, from
her husband under this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under
this section is living in adultery, or that without sufficient reason she refuses
to live with her husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order.”
15. In paragraph Nos.37, 38, 39 and 40 of Rajnesh vs. Neha and Another:
(2021) 2 SCC 324, the Hon’ble Apex Court has observed as
under:-
“37. In Chaturbhuj v. Sita Bai [Chaturbhuj v. Sita Bai,
(2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1
SCC (Cri) 356] this Court held that the object of
maintenance proceedings is not to punish a person for his
past neglect, but to prevent vagrancy and destitution of a
deserted wife by providing her food, clothing and shelter by
a speedy remedy. Section 125 CrPC is a measure of social
justice especially enacted to protect women
and children, and falls within the constitutional sweep of
Article 15(3), reinforced by Article 39 of the Constitution.
38. Proceedings under Section 125 CrPC are summary in
nature. In Bhuwan Mohan Singh v. Meena [Bhuwan
Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC
(Civ) 321 : (2015) 4 SCC (Cri) 200] this Court held that
Section 125 CrPC was conceived to ameliorate the agony,
CRLR No. 3161 of 2024
7
anguish, financial suffering of a woman who had left her
matrimonial home, so that some suitable arrangements could
be made to enable her to sustain herself and the children.
Since it is the sacrosanct duty of the husband to provide
financial support to the wife and minor children, the husband
was required to earn money even by physical labour, if he is
able-bodied, and could not avoid his obligation, except on
any legally permissible ground mentioned in the statute.
39. The issue whether presumption of marriage arises when
parties are in a live-in relationship for a long period of time,
which would give rise to a claim under Section 125 CrPC
came up for consideration in Chanmuniya v. Virendra
Kumar Singh Kushwaha [Chanmuniya v. Virendra
Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 1
SCC (Civ) 53 : (2011) 2 SCC (Cri) 666. This judgment was
referred to a larger Bench.] before the
Supreme Court. It was held that where a man and a woman
have cohabited for a long period of time, in the absence of
legal necessities of a valid marriage, such a woman would be
entitled to maintenance. A man should not be allowed to
benefit from legal loopholes, by enjoying the advantages of a
de facto marriage, without undertaking the duties and
obligations of such marriage. A broad and expansive
interpretation must be given to the term “wife”, to include
even those cases where a man and woman have been living
together as husband and wife for a reasonably long period of
time. Strict proof of marriage should not be a precondition
for grant of maintenance under Section 125 CrPC. The Court
relied on the Malimath Committee Report on Reforms of
Criminal Justice System published in 2003, which
recommended that evidence regarding a man and woman
living together for a reasonably long period, should be
sufficient to draw the presumption of marriage.
40. The law presumes in favour of marriage, and against
concubinage, when a man and woman cohabit continuously
for a number of years. Unlike matrimonial proceedings
CRLR No. 3161 of 2024
8
where strict proof of marriage is essential, in proceedings
under Section 125 CrPC such strict standard of proof is not
necessary. [Kamala v. M.R. Mohan Kumar, (2019) 11
SCC 491 : (2019) 4 SCC (Civ) 732 : (2019) 4 SCC (Cri)
242].”
16. The Hon’ble Apex Court in paragraph Nos.77, 78, 79 and 80 of Rajnesh
vs. Neha and Another (supra) has provided for criteria for determining
quantum of maintenance, which reads as under:-
“ 77. The objective of granting interim/permanent
alimony is to ensure that the dependent spouse is not
reduced to destitution or vagrancy on account of the
failure of the marriage, and not as a punishment to the
other spouse. There is no straitjacket formula for fixing
the quantum of maintenance to be awarded.
78. The factors which would weigh with the court inter
alia are the status of the parties; reasonable needs of
the wife and dependent children; whether the applicant
is educated and professionally qualified; whether the
applicant has any independent source of income;
whether the income is sufficient to enable her to
maintain th same standard of living as she was
accustomed to in her matrimonial home; whether the
applicant was employed prior to her marriage; whether
she was working during the subsistence of the
marriage; whether the wife was required to sacrifice
her employment opportunities for nurturing the family,
child rearing, and looking after adult members of the
family; reasonable costs of litigation for a non-working
wife. [ Refer to Jasbir Kaur Sehgal v. District Judge,
Dehradun, (1997) 7 SCC 7; Refer to Vinny Parmvir
Parmar v. Parmvir Parmar, (2011) 13 SC 112 : (2012)
3 SCC (Civ) 290]”
79. In Manish Jain v. Akanksha Jain [Manish Jain
v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC
(Civ) 712] this Court held that the financial position of
the parents of the applicant wife, would not be material
CRLR No. 3161 of 2024
9
while determining the quantum of maintenance. An
order of interim maintenance is conditional on the
circumstance that the wife or husband who makes a
claim has no independent income, sufficient for her or
his support. It is no answer to a claim of maintenance
that the wife is educated and could support herself. The
court must take into consideration the status of the
parties and the capacity of the spouse to pay for her or
his support. Maintenance is dependent upon factual
situations; the court should mould the claim for
maintenance based on various factors brought before
it.
80. On the other hand, the financial capacity of the
husband, his actual income, reasonable expenses for
his own maintenance, and dependent family members
whom he is obliged to maintain under the law,
liabilities if any, would be required to be taken into
consideration, to arrive at the appropriate quantum of
maintenance to be paid. The court must have due
regard to the standard of living of the husband, as well
as the spiralling inflation rates and high costs of living.
The plea of the husband that he does not possess any
source of income ipso facto does not absolve him of
his moral duty to maintain his wife if he is able- bodied
and has educational qualifications. [Reema Salkan v.
Sumer Singh Salkan, (2019) 12 SCC 303 : (2018) 5
SCC (Civ) 596 : (2019) 4 SCC (Cri) 339]”
17. After thoroughly discussing the numerous judgements of the Hon’ble
Apex Court and this Court, the Apex Court in para-109 of Rajnesh vs. Neha
and Another (supra) held that maintenance should be provided from the date
of application not from the date of order. The para- 109 of the aforesaid
judgement reads as under:-
“109. The judgments herein-above reveal the divergent
views of different High Courts on the date from which
maintenance must be awarded. Even though a judicial
discretion is conferred upon the court to grant
CRLR No. 3161 of 2024
10
maintenance either from the date of application or
from the date of the order in Section 125(2) CrPC, it
would be appropriate to grant maintenance from the
date of application in all cases, including Section 125
CrPC. In the practical working of the provisions
relating to maintenance, we find that there is
significant delay in disposal of the applications for
interim maintenance for years on end. It would
therefore be in the interests of justice and fair play that
maintenance is awarded from the date of the
application.”
18. The Hon’ble Apex Court in the decision of Rajnesh vs. Neha and
Another (supra) has held that the husband is bound to provide maintenance
allowance to his wife and children which may be upto 25% of his monthly
income.
19. So far as the loan is concerned, it is clear that it is a voluntary deduction
and the amount in lump sum was already received by the respondent in
advance as this amount is being repaid in installments, therefore, the said
installment cannot be said to be a statutory and mandatory deduction.
Furthermore, according to the revisionist no.1 the said loan was taken after
the separation and, therefore, it was deliberately done by the respondent to
bring down his net take home salary. Therefore, it cannot be taken into
consideration for calculating the quantum of maintenance.
20. Considering the law propounded by the following decisions and facts
and circumstances of the case, there is sufficient ground to allow the present
criminal revision and enhance the amount of maintenance allowance to be
paid to the revisionist Nos.1 and 2.
21. In view of the aforesaid factual and legal aspect, I am of the view that the
impugned order dated 14.03.2024 is erroneous and cannot survive in the
eyes of law, therefore, I set aside the impugned order for the aforesaid
reasons.
22. The application for enhancement of maintenance allowance filed by
revisionist nos.1 and 3 is allowed and it is observed that revisionist no.1 will
be entitled for Rs.15,000/- per month as maintenance allowance and
revisionist no.3 (minor daughter of opposite party no.2) with Rs.10,000/- per
CRLR No. 3161 of 2024
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month.
23. Thus, opposite party No.2 shall be bound to provide maintenance
allowance @ of Rs.15,000/- to his wife (revisionist No.1) and Rs.10,000/- to
his minor daughters each (revisionist No. 3) and total Rs.25,000/- per month
shall be given to the revisionists from the date of application. The arrears of
maintenance allowance shall be paid by the opposite party No.2 in four
equal amounts at the gap of four months. The monthly interim maintenance
shall be paid regularly by 10th day of each month.
24. It is observed that revisionist no.2 was born on 28.2.2003 and hence
she is major. As a major daughter she is ineligible for maintenance under
section 125 Cr.P.C. However, she is at liberty to seek such legal remedies
as may be available to her under appropriate law regarding her
maintenance as unmarried daughter, who is unable to maintain herself.
25. The present criminal revision is allowed in terms of above mentioned
conditions.
26. The copy of the order be sent to the trial Court concerned for necessary
compliance, forthwith.
(Jai Krishna Upadhyay,J.)
February 18, 2026
Kumar Manish
Digitally signed by :-
MANISH TRIPATHI
High Court of Judicature at Allahabad
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