Ali Hasan vs Smt. Zamina and Another

S. Zaheer Hasan, J.—This is a petition u/s 482 of the Code of Criminal Procedure against the judgment and order passed by Sri Lakshmi Bihari, IV Addl. Sessions Judge, Kheri confirming the order of II Special Magistrate, Kheri by which the applicant was directed to pay rupees ninety for the maintenance of his wife and daughters.

Srimati Zamina moved an application u/s 125 Code of Criminal Procedure on 09.02.1978 against her husband claiming maintenance for herself and her two daughters. It was alleged that she was married about 16 years back and she gave birth to one son and two daughters that she along with her daughters was turned out by her husband and thereafter she started living with her brother Mohammad Hasan and with great difficulty she gets one time meal, that she is unable to maintain herself, that the opposite party (her husband) earns about Rs:. 600/- per month and he has seven acres of cultivation. Therefore she claimed maintenance at the rate of Rs. 150/- per month. The husband filed a written statement denying various allegations and in Para 10 it was stated that he was willing to bring back his wife and promised not to harass her in any manner. He, however, denied having any cultivation. The applicant examined herself and two witnesses. The opposite party examined himself and one witness. The learned Magistrate held that the husband turned out the applicant (his wife) and neglected to maintain her and his two daughters and the wife is unable to maintain herself. He further held that the husband was earning about Rs. 300/-per month. So he awarded Rs. 60/- per month to the wife and Rs. 30/- per month for her two minor daughters. The matter went up in revision which was dismissed. Hence this petition u/s 482 Code of Criminal Procedure

The first contention by the learned Counsel for the husband was that in para 10 of the written statement an offer was made and no finding was given by the courts below regarding the same. An offer by the husband to keep his wife with him must be bonafide. Last minute offer is open to skepticism as it is put forward with no other object than to ward off the obligation. Frequently such offers are made to defeat the claim. The wife was living with her brother since long and during that period, as stated by her on oath, the husband never tried to take her nor provided any maintenance for her. After taking the plea in the written statement it does not appear that any serious attempt was made to show that the offer was given and the husband really wanted to take her back. No question was put to her on this score while she was in the wilds box. From the judgments of the courts below it does not appear that this offer was pressed before the two courts. So it may be that some plea is taken in the written statement but subsequently it is not pressed. To my mind the offer made by the husband in his written statement is not genuine.

The learned Judge has observed that Natha Lal PW 2 has stated that the husband has one arce of land and according to Change PW 3 he has 23 acres of land. The husband himself has admitted that his income was about Rs. 100-125/- per month. Insolvent baggers must support their wife so long as they are able bodied and can take out their livelihood. The husband has earning capacity and is able bodied person. This circumstance along with the statement of Srimati Zamina PW 1, Natha Lal PW 2 and Change PW 3 and the husband''s own statement do not suggest that the amount awarded by the Courts below is unreasonable or excessive. The wife is unable to maintain herself nor can the daughters earn anything. There has been neglect on the part of the husband as held by the courts below. I, therefore, find no good ground to exercise the inherent powers of the Court u/s 482 of the Code of Criminal Procedure The petition is dismissed.