Pitamdas Bairagi vs Janki Bai Bairagi

(1). The applicant has preferred this petition under Section 19(4) of Family Court Act being aggrieved by order dated dated 06.12.2018 passed by Second Additional Principal Judge, Family Court in MJC No.956/2017 whereby the application filed by the non applicant for grant of interim maintenance during the pendency of the application under Section 125 of Cr.P.C. has been allowed and applicant is directed to pay Rs.3,000/- to non applicant No.1 and Rs.1,000/- to non-applicant No.2 as interim maintenance.

(2). It is admitted fact that the marriage between the applicant and non- applicant No.1 was solemnized on 06.05.2011 as per Hindu rites and customs and out of their wedlock one female child named Samiksha @ Lavi was born. At present the non-applicants are residing separately from the applicant and the applicant has not made any arrangement for their maintenance.

(3). The non-applicant No.1 has filed an application under Section 125 of Cr.P.C. for getting maintenance from the applicant alleging that applicant and his family members persistently making demand of dowry and ill treated her due to which she was compelled to live in her parental house. She has not having any source of income, therefore, she is unable to maintain herself and her daughter whereas applicant is working in private company and getting Rs. 15,000/- per month, therefore prayer was made for granting Rs. 9,000/- per months as maintenance from the applicant.

(4). The applicant opposed the application contending that the behavior of the non-applicant No.1 was not good towards the applicant and his parents and she used to fight with them on small domestic issues. She was never interested to continue relationship with the applicant, therefore, she is living in her parental house out of her own will, hence, she is not entitled for grant of any maintenance amount from the applicant. It is further submitted that the applicant is working as daily wager and he is not having fix income to pay maintenance amount to the respondent, therefore, he prayed for rejection of the application.

(5). The trial court after considering the material available on record directed the applicant to pay Rs. 3,000/- per month and Rs. 1,000/- to non-applicant No.2 as interim maintenance which is subject matter of challenge before this Court.

(6). Learned counsel for the applicant has submitted that Family Court has committed error in granting interim maintenance to the non-applicants. He further submitted that the non-applicant No.1 is living separately on her own accord and she has filed false complaint against the applicant regarding the demand of dowry and harassment. The applicant is ready to keep her with him but the non-applicant No.2 is not willing to live with him. The applicant is daily wager employee and he does not have any fix income, he is earning Rs. 6000/- per month out of which he has to pay monthly rental of Rs. 2,000/-per month, therefore he is not having enough income to pay aforesaid amount to the non-applicant. It is further submitted that the non-applicant No.1 is having expertise in tailoring and capable to earn sufficient income, therefore, the trial court has committed grave error in directing the applicant to pay Rs. 3,000/- to non-applicant No.1 and Rs. 1,000/- to non-applicant No.2 as maintenance.

(7). After considering the argument advanced by the learned counsel for the applicant, this court is of the view that the applicant being a husband of non-applicant No.1 and father of non-applicant No.2 is responsible to maintain them. Whether the non-applicant is living separately with the applicant without any reasonable cause, this fact can be decided after recording the evidence of parties and deciding the application filed by the non-applicant under Section 125 of Cr.P.C. on merit. This fact cannot be taken into consideration while deciding the application for interim maintenance, therefore, argument advanced by the learned counsel for the applicant is not acceptable that non-applicant No.1 is not entitled for any maintenance from the applicant.

(8). The crucial issue regarding the income of the applicant has been considered by the trial court and found that even if the applicant is working as labour, then it can be assumed on the basis of minimum wages notified by the Government from time to time. On this basis, the learned trial Court has ascertained the income of the applicant as Rs.10,000/- per month and awarded Rs.3,000/- in favour of non-applicant no.1 wife and Rs.1,000/- in favour of non-applicant no.2 as interim, maintenance.

(9). After considering the facts and circumstance of the case, this Court is of the view that the trial court has rightly calculated the income of the applicant and awarded the interim maintenance to the non-applicant, which does not warrant any interference. Accordingly, revision petition is dismissed.