Des Raj Gupta vs Smt. Urmila Gupta

Surinder Singh, J.—By this petition, the petitioner-husband has sought the quashing of the order/judgment dated 10.4.2007, passed by the learned Sessions Judge, Shimla in Criminal Revision No. 26-S/10 of 2006 and also the order passed by the learned Judicial Magistrate Ist Class, Court No. 2, Shimla, in Case No. 126/4 of 2003/06, decided on 15.7.2006, on an application, moved by the respondent-wife, u/s 125 of the Code of Criminal Procedure, for the grant of maintenance to her.

Admittedly, the respondent is the wife of the petitioner. She moved an application in the month of July, 2003, seeking maintenance, from her petitioner-husband, wherein, she alleged torture and was neglected and refused maintenance by her husband. She alleged that she was left at the resident of her mother at Shimla, in the year 1994 by her husband. Thereafter, he did not call her back and left without any monetary assistance. Later she came to know that the petitioner-husband had contacted second marriage. She stated that she was unable to maintain herself whereas, her husband was having a flourishing business at Tata-pani, having an income of Rs. 25,000/- per month.

In his reply, the petitioner-husband resisted and contested the petition. He denied mal-treatment and torture, as alleged. He stated that his wife left his company without any sufficient cause and his consent. He also denied his income, as alleged in the petition.

The parties were put to trial. They led their respective evidence. The contention raised by the respondent-wife weighed with the learned trial Court and the defence taken by the petitioner-husband was disbelieved, as such the application was allowed and the maintenance was awarded in the sum of Rs. 3,000/- per month from the date of filing the petition, which was assailed in Criminal Revision No. 26/S/10 of 2006, before the Court of Sessions.

The learned Sessions Judge, after examining its legality and propriety of the order impugned held that the respondent-wife was not residing away from the petitioner-husband without any sufficient cause and so far as the income of the husband is concerned, on the basis of the contention raised in para-8 of the grounds of revision petition, wherein it was mentioned that the husband was having monthly income of Rs. 1200/- besides the rental income of Rs. 7000/- per month (Total Rs. 8,200/-), came to conclusion that the amount of maintenance @ Rs. 3,000/- per month awarded by the learned trial Court was not excessive.

In fact, Section 482 of the Code of Criminal Procedure is neither a revision nor an appeal. Reappraisal of evidence with respect to concurrent findings of facts is impermissible. However, the High Court can exercise the powers, only in respect of the rare case, to prevent the abuse of process of the Court or to secure ends of justice.

The learned Counsel for the petitioner vehemently argued that the averments made in the grounds of revision before the learned Sessions Judge was contrary to the record and could be due to oversight by the counsel, who drafted it. He further took pains to point out that the certificate of income placed on record, whereby the petitioner-husband was shown to have the income of Rs. 15,600/- per annum i.e. about Rs. 1300/- per month was ignored. In fact, the said certificate was issued on 25th May, 2007 by the Executive Magistrate, that is after passing of the order by the Judicial Magistrate in the maintenance petition. It is pertinent to note that the petitioner was represented by a quite senior Advocate Shri Pawan Thakur, before the learned Sessions Judge in revision petition and para 8 of the said petition was drafted at the instance of the petitioner himself. Therefore, his contention at this stage that these averments are wrong and/or due to typographic mistake cannot be believed.

Otherwise also, the petitioner is running a vegetable shop at Tatapani, whereas, the respondent-wife is not having any income. It is also proved on record that the petitioner had refused and neglected to maintain her. She has a justifiable cause not to live with her husband. Therefore, in the facts and circumstances of the case looking at the status and standard of living of the parties, it cannot be said that the amount of Rs. 3,000/- per month, is excessive, for the maintenance of his wife by the petitioner, as such the petition is dismissed.