Ashok Kumar vs Anjna Devi

Satyen Vaidya, J

By way of instant petition, petitioner has assailed the order dated 28.11.2019 passed by learned Session Judge, Bilaspur in Criminal Revision No. 2/10 of 2019, whereby, the order passed by learned Judicial Magistrate 1st Class, Court No.3, Ghumarwin, District Bilaspur, H.P. in Criminal Miscellaneous Application No. 169/4 of 2018, allowing the interim maintenance in favour of respondent herein has been modified, reducing interim maintenance from Rs.3000/- per month to Rs.2500/- per month.

Brief facts of the case are that respondent (hereinafter referred to as the ‘wife’) filed an application under Section 125 Cr.P.C against the petitioner (hereinafter referred to as the ‘husband’) for grant of maintenance on the allegations of her neglect at the hands of husband. It is alleged that a son and daughter were born out of wedlock between wife and husband. Unfortunately, son had died and thereafter wife had to suffer harassment, humiliation and neglect at the hands of husband. Wife was residing with her parents. She claimed to have no independent source of income. On refusal of the husband to maintain the wife, she filed the application as aforesaid. Prayer for interim maintenance was also made. Husband was alleged to be earning Rs.30,000/- per month by running hotel business.

Husband has contested the petition as well as the interim application on the ground that wife, herself was a wrong doer and had left her matrimonial home without any rhyme or reason. Allegations of neglect, harassment and maltreatment were specifically denied. It was submitted that in fact three children were born out of the wedlock between the parties. Two of them had died and the third daughter aged about 6-7 years was residing with husband. It was the husband who was maintaining his school going daughter. Husband also alleged himself to be under financial stress on account of huge amount of expenditure on the treatment of his father, besides his duty to look-after his mother. Husband, specifically alleged that wife was a trained Tailor and was earning approximately Rs.15,000/- per month. As regards his income, the husband pleaded that he was working only as a casual labourer and specifically denied that he was running any hotel.

On assessment of material on record, learned trial Court concluded that allegations and counter-allegationswere subject to proof during trial. Existence of prima-facie case was found in favour of wife for the reasons firstly that husband had failed to place on record any material to show that wife was working as a Tailor and earning her livelihood and secondly that husband being a casual labourer would be earning at least Rs.9,000/- per month from such avocation. An interim maintenance of Rs.3,000/- per month was accordingly allowed in favour of wife to be payable by husband from the date of filing of the application.

Aggrieved against the order passed by learned Magistrate, husband assailed the same before learned Sessions Judge by invoking the revisional jurisdiction under Section 397 Cr.P.C. The revisional Court did not find any infirmity or illegality in the order passed by learned trial Court and thus affirmed the same subject, however, to the modification that quantum of monthly maintenance was reduced from Rs.3,000/- per month to Rs.2500/- per month on the ground that husband was looking after the daughter also and had other family responsibilities. In these circumstances, a sum of Rs.2500/- was found justifiable maintenance amount payable to the wife.

Husband filed the instant petition before this Court initially under Article 227 of the Constitution of India, which later was converted to be one under Section 482 Cr.P.C on his application.

I have heard Mr. Rakesh Chauhan, learned counsel for the petitioner and Mr. Praveen Chandel, learned counsel for the respondent and have also gone through the record carefully.

Both Courts below have concurrently found that relationship of husband and wife was not in dispute. It was also found from the material on record that wife was residing separately. The Courts below could have looked into the material before them only for prima-facie assessment of the respective cases of the parties. Nothing was placed on record to show that wife had any earning source or was in fact earning something for her.

This Court, while exercising jurisdiction under Section 482 C.P.C has limited scope of interference with interim orders passed by the Courts below. Such jurisdiction can be exercised only to remedy miscarriage of justice, if any.

In the given facts and circumstances of this case, no fault can be found with the orders passed by learned trial Court as well as learned Revisional Court. The very purpose of Section 125 Cr.P.C is to stop and avoid destitution of unfortunate women and children. Definitely, the balance of convenience is in favour of wife, as in the facts of instant case, nothing has been shown on record to justify the allegations regarding wife earning Rs.15,000/-or any other amount per month. Since the wife is residing separately, the primary responsibility of her maintenance is on the husband. There is no illegality in the presumptive findings of learned Courts below regarding approximate monthly income of husband at Rs.9,000/-. That being so, an amount of Rs.2500/- per month cannot be said to be unjustified.

In the light of the above discussion, no illegality or material irregularity is noticeable in the impugned order passed by learned Sessions Judge. Accordingly, the petition is dismissed, so also the pending applications, if any.

Any observations made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observations made herein above.