Malkiat Kaur vs Jagmel Singh

V.S. Aggarwal, J.—Petitioner Malkiat Kaur was married to the respondent in accordance with Hindu rites and ceremonies on 7.2.1977 in Village Singhpura, Tehsil and District Sirsa. They were blessed with a child Jaswinder Singh. The petitioner filed an application u/s 125 of the Code of Criminal Procedure alleging that about 3 years before the filing of the petition, the respondent turned her out of his house by giving her servere beating. She is residing with her father. Being an illiterate lady, she has no means of her survival. The respondent works as an octroi clerk and is drawing Rs. 1,500/- per month as salary and earns Rs.4,000/- from immovable property. She prays for maintenance of Rs. 500/- per month.

In the reply filed, the factum of marriage with Malkiat Kaurwas admitted. It was denied that he had neglected or refused to maintain her. Respondent''s case was that petitioner wanted to seek divorce. She filed a petition which was dismissed on 22.8.1989. It was further asserted that petitioner is an educated only. She was earning Rs. 500/- per month by doing part-time job in local unit of hosiery in the village. Respondent''s income was described as Rs. 900/- per month as salary including other allowances and that he has to feed his ailing parents.

Learned Judicial Magistrate after recording of evidence ofl9.11.1991 allowed me petition and directed the respondent to pay Rs. 300/- per month as maintenance from 28.7.1989. The respondent preferred a revision petition. Additional Sessions Judge, Sirsa on 28.3.1992 allowed the revision petition.

On perusal of the evidence, it was concluded that the petitioner failed to establish that respondent has neglected or refused to maintain her. The order passed by the learned Judicial Magistrate was set aside. Aggrieved by the same, the present revision petition has been preferred.

Section 125 of the Code of the Criminal Procedure has been enacted to (sic) by compelling a person to support his wife, children or father etc. This is to provide cheap and speedy remedy. Sub-section 1 to Section 125 of the Criminal Procedure Code reads as under :

"125. Order for maintenance of wives, children and parents-(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means."

Perusal of the above quoted provision would show that the concerned person referred to in Clauses (a) to (d) of Sub-section 1 to Section 125 Code of Criminal Procedure can claim maintenance, if the other person from whom the maintenance is claimed neglects or refuses to maintain his wife, children or parents or the person mentioned in the said provisions. Thus, it is mandatory that it must be established that respondent neglected or refused to maintain the petitioner.

In the present case, learned Additional Sessions Judge has concluded that petitioner failed to establish that respondent has neglected or refused to maintain her. He had scanned through the evidence. This Court would be reluctant to interfere in the basis finding of fact, unless the said conclusion is erroneous.

Petitioner and her father appeared as witnesses. Petitioner stated as AW1 that respondent had assaulted her and she was turned our of the house. Babu Singh father of the petitioner supported her. It is rebutted by the statement of Jagmel Singh, RW 1. In addition to that Karnail Singh RW 2 and Dasonda Singh RW3 categorically stated that no such dispute has come to their notice. They even stated that petitioner had refused to come and live with the respondent when they went to bring her back. The matter is clarified further by the statement of RW 5 Baljinder Singh, son of the petitioner and the respondent. He deposed that he had accompanied the respondent, when he went to take her mother. The petitioner wanted 2 Kill as of land to be transferred in her name. There is no reason to discard the statement of the son of the parties. He is a disinterested witness. This shows that the respondent had not neglected or refused to maintain the petitioner. In fact, she herself is putting terms to live with the respondent. When such are the facts, there is no ground to interfere in the findings arrived at by the learned Additional Sessions Judge.

For these reasons, revision petition being without merits, fails and is dismissed.