NARESH KUMARversusSTATE OF U.P. AND ANOTHER

       HIGH COURT OF JUDICATURE AT ALLAHABAD
            CRIMINAL REVISION No. - 6959 of 2025

Naresh Kumar
                                                  …..Revisionist(s)

                             Versus

State of U.P. and another
                                              …..Opposite Party(s)


Counsel for Revisionist(s)    : Abhishek Tripathi
Counsel for Opposite Party(s) : G.A., Siddharth Khare


                                 Judgment Reserved on 10.08.2026
                                 Judgment Delivered on 18.09.2026
                                 Judgment Uploaded on 18.09.2026
Court No. - 87

           HON'BLE LAKSHMI KANT SHUKLA, J.

1. Heard Mr. Abhishek Tripathi, learned counsel for revisionist,
learned AGA appearing on behalf of State-opposite party no. 1, Mr.
Siddharth Khare, learned counsel appearing on behalf of opposite
party no. 2 and perused the record.

2. Revisionist Naresh Kumar has approached this Court by means
of present Criminal Revision assailing the impugned judgment and
order dated 26.08.2025 passed by Additional Principal Judge
Family Court, Court No. 3, Kanpur Nagar (hereinafter referred to as
trial Court) in Case No. 95 of 2018 "Smt. Aruna Srivastav Vs.
Naresh Kumar" wherein the trial court allowed the application
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under section 125 Criminal Procedure Code (in short Cr.P.C.) filed
by opposite party no. 2 ordered the revisionist to pay Rs. 18,000/- to
opposite party no. 2 as monthly maintenance enhancing the earlier
amount of maintenance Rs. 9,000/- monthly.

3. Feeling aggrieved from that order the revisionist has filed this
revision on the grounds that the impugned order is bad in law, the
same has been passed by ignoring the material evidence available
on record. It is passed without applying judicial mind and a prayer
for setting aside the impugned judgment and order allowing the
criminal revision has been made.

4. Learned counsel appearing on behalf of revisionist submitted that
the revisionist is a retired judicial officer and according to affidavit
filed by him before the trial court (its copy occurs at page 104 of the
paper book) his basic pay at the time of his retirement, i.e.,
30.11.2020 was Rs. 60,310/- per month and his pension was
calculated as Rs. 25,632/- per month but the trial court ordered him
to pay Rs. 18,000/- per month holding his income Rs. 88,000/- per
month without any reliable evidence. It is further contended by
learned counsel for revisionist that the application under section 127
Cr.P.C. filed by opposite party no. 2 was based on false and baseless
facts as well as by concealing material evidence that the opposite
party no. 2 herself was not interested in living with the revisionist
and unwilling to perform her matrimonial duties towards him.
Before fixing the aforesaid amount of maintenance no finding has
been recorded by the trial court. The trial court completely failed to
appreciate that the opposite party no. 2 has grabbed the house of the
revisionist and she is residing in same house, where all household
articles and facilities are already available to her. It is further
submitted that all the children of opposite party no. 2 have attained
majority. Her daughter is working in Bank and both the sons are
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advocates, so that the opposite party no. 2 has now able to maintain
herself as she may get maintenance from her major and earning
children.

5. It is next submitted that the revisionist has purchased a plot
having current value of Rs. 60,00,000/- in the name of opposite
party no. 2 but the same has been ignored by trial court while
passing the impugned order. The revisionist tried his level best to
save his matrimonial relationship with opposite party no. 2 but only
due to rude, rigid and cruel behavior of the opposite party no. 2 all
his efforts gone in vein. Then he filed a divorce petition against
opposite party no. 2 in the Court of Civil Judge Senior Division,
Unnao which was registered as R.S. No. 454 of 2005 (Naresh
Kumar Vs. Smt. Aruna Srivastava) under section 13 of Hindu
Marriage Act, 1955. On 17.08.2006, learned trial court passed ex-
parte decree of divorce in favour of revisionist. After expiry of
sufficient time the revisionsit perform his second marriage with
Nishith Srivastava and from the said wedlock, he has two children
and now the revisionist has responsibility of maintaining his second
wife and children also and his pension is the only way of their
livelihood. It is thus contended that for the aforesaid reasons the
impugned order is unsustainable in the eyes of law. Accordingly, it
has been prayed that the present criminal revision be allowed and
the impugned order be quashed/set aside.

6. Per contra, learned AGA as well as learned counsel appearing on
behalf of opposite party no. 2 opposed the present Criminal
Revision and in support of impugned order submitted that in so far
as the contention of learned counsel for revisionist regarding the
alleged rude, rigid and cruel behaviour of opposite party no. 2 is
concerned, no such contention can be accepted at this level because
the trial court after considering all such things passed the order of
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maintenance in favour of opposite party no. 2 fastening the
revisionist to pay monthly amount of Rs. 5,000/- on 17.11.2011.
The interim maintenance of Rs. 7,000/- per month was also
awarded to be paid by revisionist to opposite party no. 2 under
section 24 of Hindu Marriage Act, 1955 in short "HM Act", such
amount was adjustable with the maintenance amount awarded in
application under section 125 Cr.P.C. It is also remarkable that
when order dated 17.12.2011 was passed a maximum limit of Rs.
5,000/- was imposed by legislature towards maintenance amount
under section 125 Cr.P.C. later on such limit was removed by way
of an amendment by the Central Legislature and then an application
for enhancement of maintenance was moved which was allowed
and the amount of maintenance amount was enhanced to Rs. 9,000/-
per month.

7. It is next contended that though the revisionist was in service,
therefore, his income was regularly increasing by the spam of time
and again an application for enhancement of maintenance amount
was filed on account of increase of income of revisionist. When
such application was filed in the year of 2017-18 the monthly
income of revisionist was Rs. 1,25,000/-. The purpose of above
noted submission is only to show the Court that the allegation
against the opposite party no. 2 regarding her bad behaviour is no
longer relevant for consideration at this stage. The trial court has
observed that the opposite party/present revisionist has admitted his
monthly income to be Rs. 88,000/-, such observation has occurred
at page 48 of the paper book. The impugned order has been passed
on 26.08.2025 whereas the revisionist was retired on 30.11.2020
from the post of Additional District Judge. At the time of his
retirement, the recommendation of the II National Judicial Pay
Commission (in short II NJPC), which had come into effect from
01.01.2016 had not been implemented in respect of judicial officers
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in the State of Uttar Pradesh. But before passing of the impugned
order, the consequential revision of the pay of judicial officer
pursuant to the implementation of the recommendation of the II
NJPC had taken effect, accordingly the pension of revisionist was
also revised and the revisionist was bound to admit his income
because he has no opportunity to conceal the same from Court. In
the aforesaid conspectus the submission of learned counsel for the
revisionist that the trial court failed to take into consideration the
pension of the revisionist, stated to be Rs. 25,632/- per month, does
not appear to be material or worthy of consideration at this stage. So
far as decree of divorce is concerned it is admitted by the revisionist
that such decree was passed by the Court of Civil Judge Senior
Division, Unnao while according to provision contained under the
Hindu Marriage Act is entertainable by the District Court.

8. By virtue of Section 19 of Hindu Marriage Act, 1955 read with
Section 3 (17) of the General Clauses Act, 1897, a petition for
divorce can be filed before the Court of District Judge, so that a
decree of divorce passed by a Civil Judge (Senior Division) is per
incuriam having no legal sanctity even if it is not challenged before
any higher Court. So the contention of learned counsel for
revisionist that after getting decree of divorce he married with
another lady and has two children from his second wedlock
becomes immaterial for the purpose of determination of quantum of
maintenance in favour of opposite party no. 2.

9. So far as contention of learned counsel for revisionist regarding
capability of maintenance from earning children of opposite party
no. 2 is concerned it is undisputed that parties belong to Hindu
Religion and a Hindu wife feels proud if her husband left her no
occasion to seek any assistance especially economic assistance from
any person other than her husband. No wife can choose to seek
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financial assistance even from her own children if her husband
having capacity to maintain herself is alive, therefore, such
contention of revisionist cannot be regarded by this Court. It is thus
contended that in view of above the present criminal revision, being
devoid of merit, deserves to be dismissed by this Court.

10. Having heard the rival submissions and perusal of record, there
is no doubt that the revisionist was serving in judicial service and
retired from the post of Additional District and Sessions Judge on
30.11.2020 certainly his basic pay at that point of time was Rs.
60,310/- per month. Though the required service of 20 years of
fixation of full pension could not be completed by the revisionist
due to his early superannuation certainly he was not entitled for full
pension and his pension was fixed as Rs. 25,632/- per month. But
the contention of learned counsel appearing on behalf of opposite
party no. 2 is that during the pendency of application under section
127 Cr.P.C. filed by opposite party no. 2 the situation changed and
the pay of judicial officers revised according to recommendation of
the aforesaid commission constituted under the directions of the
Hon'ble Apex Court in persuasion with the implementation of the II
NJPC. Accordingly, the pension of revisionist obviously revised and
it is admitted to the revisionist that he receives monthly pension of
about Rs. 88,000/-.

11. Apart from that it is a matter of general prudence that though the
recommendations of the Pay Commission were implemented from
01.01.2016 but it was not effected on the date of retirement of
revisionist meaning thereby a huge amount of arrears of pay was
also received by the revisionist. But he conceals all these things
from trial court. The revisionist/opposite party no. 2 is not only a
simple litigant of family dispute but he is a retired judicial officer
and it is recognized that a Judge always a Judge and a Judge cannot
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be expected that he conceals any material facts or misrepresents any
fact. It is beyond the expected nature of judicial officer. So far as
the contention of learned counsel for opposite party no. 2 regarding
divorce petition and the decree of divorce between the parties is
concerned, Section 19 of Hindu Marriage Act read with Section
3(17) of the General Clauses Act is relevant. Section 19 Hindu
Marriage Act, 1955 provides forum of petition under this Act:-

     "19. Court to which petition shall be presented.- Every petition under
     this Act shall be presented to the district Court within the local limits of
     whose ordinary original civil jurisdiction-

    (i) the marriage was solemnized, or

    (ii) the respondent, at the time of the presentation of the petition,
    resides, or

    (iii) the parties to the marriage last resided together, or

    (iii-a) in case the wife is the petitioner, where she is residing on the
    date of presentation of the petition, or

    (iv) the petitioner is residing at the time of the presentation of the
    petition, in a case where the respondent is, at that time, residing
    outside the territories to which this Act extends, or has not been
    heard of a being alive for a period of seven years or more by those
    persons who would naturally have heard of him if he were alive."

    Section 3 Clause 17 of General Clauses Act, 1897 defines "District
    Judge" which means Judge of a Principal Civil Court of original
    jurisdiction. Section 3 Clause 17 of the General Clauses Act, 1987
    is as under:-

    "(17) "District Judge" shall mean the Judge of a principal Civil
    Court of original jurisdiction, but shall not include a High Court in
    the exercise of its ordinary or extraordinary original civil
    jurisdiction."
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12. As per provision contained in Section 19 of the Hindu Marriage
Act, 1955 any petition under this Act can be filed only before the
District Judge. District Judge means the court of District Judge but
not a single court of Civil Judge Senior Division. So the decree of
divorce passed by Civil Judge Senior Division is decree passed by
incompetent Court, therefore, such divorce of decree has no legal
sanctity. Accordingly, the second marriage of revisionist and
children from that wedlock cannot be considered as his valid
liability while considering the quantum of maintenance in favour of
opposite party no. 2. In the case of Kalyan Dey Chowdhury Vs. Rita
Dey Chodhury Nee Nandy (2017) 14 SCC 200, the Hon'ble Apex
Court has held that 25% of income of husband may be awarded to
wife as maintenance but such direction of Hon'ble Apex Court
applicable in normal course. It is remarkable that when a person
earns performing his duty he/she has more expenses which has
being compulsorily borne on such employee to maintain
himself/herself according to his/her employment norms. On other
hand the person claiming maintenance has no extra expenses other
than basic needs so the person claiming maintenance cannot be
benefitted more than basic needs or more than status of family but
in present case it is evident that revisionist is withdrawing pension
and for that he is not compelled to maintain himself as per norms of
his office.

13. So in such matter the maintenance claiming wife is entitled not
only up to 25% of income but her maintenance amount may be
above than 25% of pension amount of her husband. But the trial
court has passed an order of monthly maintenance less than 25% of
income of revisionist/husband. Accordingly, we do not find any
good reason to interfere with the aforesaid amount of maintenance
in negative side. So the learned counsel for revisionist in this
context is not sustainable while contention of learned counsel
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                            appearing on behalf of opposite party no. 2 finds substance. So far
                            as the contention of learned counsel for revisionist regarding bad
                            behaviour of opposite party no. 2 is concerned, such fact has been
                            determined by the trial court while passing order of maintenance at
                            the initial stage. Thereafter, the maintenance amount was enhanced
                            at least twice by the trial court meaning thereby the finding of trial
                            court in this regard had attained finality and no challenge against
                            such finding can be raised at this stage. Accordingly, the
                            submissions of learned counsel appearing on behalf of revisionist
                            and learned counsel appearing on behalf of opposite party no. 2 are
                            unsustainable and sustainable respectively.

                            14. In the light of aforesaid observations, we do not find any good
                            ground to interfere with the impugned order whereby the
                            maintenance amount payable to opposite party no. 2 has been
                            enhanced. The impugned order does not suffer from any illegality,
                            infirmity or jurisdictional error warranting interference by this
                            Court in exercise of its revisional jurisdiction. Accordingly, the
                            present criminal revision, being devoid of merit, is hereby
                            dismissed.

                            15. The impugned order is affirmed.




                                                                          (Lakshmi Kant Shukla,J.)

                            September 18, 2026
                            Arti




Digitally signed by :-
ARTI SHARMA
High Court of Judicature at Allahabad