Nirmala Devi and anr. Vs. State of U.P. and anr.

Nirmala Devi and anr. vs State of U.P. and anr.

Disposition Revision allowed Court Allahabad Decided Dec 02, 1992

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Citation: sooperkanoon.com/465981
Court: Allahabad High Court
Judge: J.K. Mathur, J.
Decided On: Dec 02, 1992
Case Number: Crl. R. No. 293 of 1991
Subject: Family;Criminal
Disposition: Revision allowed

Case Summary

AI-generated summary - not the official court judgment text.

Key legal issue: Family;Criminal
Outcome / disposition: Revision allowed
Acts & sections: Code of Criminal Procedure (CrPC) , 1973 - Sections 397 and 401

Parties & Advocates

Appellant / Petitioner

Nirmala Devi and anr.

Respondent

State of U.P. and anr.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1973 - Sections 397 and 401
Reported In: II(1993)DMC225

Excerpt

- .....served upon him through his brother, he did not appear.3. i have heard learned counsel for the parties and have gone through record.4. the finding recorded by the trial court that the petitioner was entitled to the maintenance was upset mainly on the ground that it was not shown that opposite party had refused or neglected to maintain the petitioner.5. the learned sessions judge discussed the evidence addused on behalf of petitioner that she was being treated cruelly and an attempt was also made to set her on fire her. the opposite party did not controvert either of the two facts stated in the statement made before the magistrate. for this reason she had left the house of her husband and is living with her brother. in view of fact that she was being treated cruelly, she was justified in refusing to live with her husband. all the same it lay upon the opposite party to maintain his wife and child. there is nothing on record to suggest that any attempt was made by opposite party no. 2 to bring her back nor it has been pleaded or stated by him. merely making an offer to take her back, in the circumstances, when the petitioner lives with her brother and an attempt was made at her life by setting her on fire cannot be said to be a sufficient alibi for not providing maintenance to the petitioner. the finding, therefore, recorded by the sessions judge is erroneous in law and cannot be sustained.6. the revision is, therefore, allowed. the judgment and order passed by learned sessions judge, gonda dated 26.9.1991 is hereby set aside. the petitioners shall be entitled to get maintenance in accordance with the judgment of the learned magistrate.

Full Judgment

J.K. Mathur, J.

1. This revision is directed against an order passed by 1st Additional Sessions Judge on 26.9.1991 by which he allowed the revision against the judgment of the Magistrate passed on 8.4.1991 and set aside an order of granting of amount of Rs. 250/- per month as maintenance to the petitioner No. 1 and Rs. 100/- per month for petitioner No. 2.

2. The notice was issued to opposite party No. 2. It has been served upon him through his brother, He did not appear.

3. I have heard learned Counsel for the parties and have gone through record.

4. The finding recorded by the Trial Court that the petitioner was entitled to the maintenance was upset mainly on the ground that it was not shown that opposite party had refused or neglected to maintain the petitioner.

5. The learned Sessions Judge discussed the evidence addused on behalf of petitioner that she was being treated cruelly and an attempt was also made to set her on fire her. The opposite party did not controvert either of the two facts stated in the statement made before the Magistrate. For this reason she had left the house of her husband and is living with her brother. In view of fact that she was being treated cruelly, she was justified in refusing to live with her husband. All the same it lay upon the opposite party to maintain his wife and child. There is nothing on record to suggest that any attempt was made by opposite party No. 2 to bring her back nor it has been pleaded or stated by him. Merely making an offer to take her back, in the circumstances, when the petitioner lives with her brother and an attempt was made at her life by setting her on fire cannot be said to be a sufficient alibi for not providing maintenance to the petitioner. The finding, therefore, recorded by the Sessions Judge is erroneous in law and cannot be sustained.

6. The revision is, therefore, allowed. The judgment and order passed by learned Sessions Judge, Gonda dated 26.9.1991 is hereby set aside. The petitioners shall be entitled to get maintenance in accordance with the judgment of the learned Magistrate.

Same Court & Year Allahabad · 1992 Same Parties Nirmala Devi and anr. vs State of U.P. and anr. Same Subject Family;Criminal Same Judge J.K. Mathur, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1973 - Sections 397 and 401

Family;Criminal