Amar Chand Dudeja vs Kako Devi

Harphul Singh Brar, J.—This revision petition has been preferred against the order of Additional Sessions Judge, Sonepat dated 17.7.1987 vide which he had set aside the order of the Judicial Magistrate 1st Class dated 1.4.1987 dismissing the application of Smt. Kako Devi for grant of maintenance allowance u/s 125 Cr. P.C., and granted maintenance of Rs. 300/- per month to the respondent-wife against the petitioner-husband Amar Chand Dudeja, from the date of that application i.e. 5.11.1985.

Brief facts stated in the maintenance application filed by Kako Devi-respondent, are that she was married with Amar Chand-petitioner at Gannaur in'' the year 1954 and they had three sons and two daughters from their wedlock and all their childern are married. The petitioner-husband was not keeping the respondent-wife with dignity and was giving her beating and causing mental and physical torture and had expelled her from his house so many times for different period. Since 28.9.1985, she was turned out of the House by the petitioner-husband and she was threatened with dire consequences if she joined the petitioner husband at Panipat. It was then stated by Kako Devi that she was having no source of income or property to maintain herself. The petitioner was employed as a Railway Guard and drawing salary of Rs. 2,000/- and rent-free accommodation and was under a statutory and moral obligation to maintain her. Kako Devi-respondent claimed maintenance of Rs. 500/- per mensum from the petitioner.

The petitioner-husband admitted the marriage and also admitted that five children were born out of the wedlock and they all are married. He also admitted that he was employed as Guard in the Railway. He further stated that the respondent-wife was never insulted, tortured or humiliated. He then averred that the respondent-wife was of suspicious nature and she had deserted him. He denied to have ever neglected or refused to maintain her. He added that he had sought voluntary retirement from his service. He, therefore, prayed that the application of Kako Devi, be dismissed.

The learned trial Magistrate dismissed the application of the respondent-wife vide his judgment dated 1.4.1987. Kako Devi filed the revision against the order of the Judicial Magistrate before the Addl. Sessions Judge Sonepat, who vide his order dated 17.7.1987 accepted the revision and granted her maintenance allowance at the rate of Rs. 300/- per mensum.

After hearing the learned Counsel for the parties and going through the record of this case with the help of both the Counsel, I do not find any infirmity in the order of the Addl. Sessions Judge, Sonepat.

The marriage between the parties is admitted. It is proved on the record that the petitioner had neglected the respondent-wife and had refused to maintain her. It is further proved from the evidence on the record that the petitioner has got a residential house consisting of three rooms at Gannaur. One room our of these three rooms was occupied by the respondent-wife and remaining two rooms were given on rent by the petitioner to Surinder Kumar-tenant. Statement of the petitioner that the respondent-wife was receiving a rent of Rs. 250/- from Surinder Kumar tenant, has been belied from the evidence on record.

Surinder Kumar had appeared as PW 4 and has stated on oath that the rent of two rooms was only Rs. 100/- and that amount of rent was being regularly realised from him by Amar Chand-petitioner. Amar Chand-RW when asked in cross-examination as to whether he was ready to execute a power of attorney in favour of the respondent-wife to realise the rent of his house from the tenant, he then flatly refused. This further goes to show that in fact it was the petitioner-husband who was realising the rent of the house from Surinder Kumar-tenant and not the respondent-wife. The stand of the petitioner that the respondent-wife was having her source of income in the form of getting Rs. 25 /- as rent of a part of his house at Gannaur has proved to be false. On the other hand from the statement of the respondent-wife, which is corroborated by Partap Chand, her brother and PW 3 Kailash Rani, her daughter it is established that she was not having any source of income.

It is proved on the record that the petitioner-husband has got sufficient income. Petitioner admitted before the Trial Court that he was getting Rs. 5,000/-atihe time of retirement but payment was delayed as the respondent-wife had got a stay from the Court by bringing a suit against him. He also admitted that the entitlement of his pension was to the extent of Rs. 935/- per month. Statements of PW 5 Tuisi Dass and PW 2 Partap Chand, made in the Court have established that Amar-Chand after retirement was running a hotel at Panipat in eight Maria. Though the Re visional Court has held that it was established on the record that Amar Chand was having income of more than Rs. 1,000/- per month but from the evidence on the file as discussed above it seems that he had much more income than Rs. 3,000 / - per month.

In any case, let it be taken that he was having income of more than Rs. 1,000/- per month. It is clearly proved from the record that petitioner-Arnar Chand had neglected and refused to maintain the respondent-wife. It has been admitted by Amar Chand when he appeared as RW 1 before the Trial Court that during the last 1 year he had not sent any money or maintenance allowance to his wife. He has admitted in his cross-examination that her wife has occupied her house forcibi y. He has rather termed her wife as a tres passer in his house at Gannaur.

From this evidence it is clear that the petitioner-husband does not want to keep and maintain her (his ?) wife. It is also established on the file that the petitioner has got only one residential house at Gannaur, and her (his ?) wife is staying there in one of the rooms. He wants her to stay with him in some other house where he is living and it is not established from the record that house belongs to him. This seems to be his device to deprive her (his ?) wife to stay in one of the rooms of his house at Ghannaur because the moment she leaves that house, then, as his attitude is reflected from the record, he will give the whole house belonging to him at Ghannaur on rent and will not allow her even to stay with him where he is staying now not in the capacity of as an owner.

There is no evidence on the record which could show that she ever refused to stay with him or refused to revive the marital relations with the petitioner. In the case in hand, the respondent-wife is living in one room of the house of the husband and there is no evidence on the file that she ever refused to fulfil her marital obligations. It is rather very much discernible from the evidence that in fact the husband does not want to maintain her and to fulfil his marital obligations towards his wife.

The first Revisional Court has set aside the order of the Trial Magistrate after giving valid reasons. The respondent-wife has only been granted maintenance allowance at the rate of Rs. 300/ per month u/s 125 of the Code of Criminal Procedure though there is evidence on the file that petitioner-husband is earning much more than Rs. 1,000/- per month. In these days even a labourer normally earns about Rs. 1.200/- per month. The maintenance awarded is thus not on a higher side.

In view of my discussion made above, I do not find infirmity in the order of the Revisional Court. I, thus, maintain his order dated 17.7.1987 and dismiss this revision petition with costs, which are quantified as Rs. 500/-.