Suresh Yadav vs Sunita Devi

The petitioner has challenged the judgment dated 04.06.2016 passed in Maintenance Case No. 17 of 2014 by which he has been directed to pay Rs.5000/- per month to his wife.

Mrs. Rashmi Kumar, the learned counsel for the petitioner submits that the learned Judge, Family Court without ascertaining income and other liabilities of the petitioner has granted maintenance of Rs.5000/- for his wife which is excessive and onerous to the petitioner.

The marriage between the parties is not disputed by the petitioner. The petitioner was married to the applicant no. 1 in the year 1993 and from the wedlock a son has been born who was minor at the time when the application under section 125 of the Code of Criminal Procedure was filed. In Maintenance Case No. 17 of 2014 his wife has examined four witnesses and the petitioner has also examined four witnesses. The petitioner's wife who has examined herself as A.W.3 has spoken about her marriage, demand of Rs.1 Lac by her husband and cruelty inflicted upon her by him. She has stated that her husband is working as Mechanic at Delhi and earning Rs. 25000/- per month. She has also claimed that he has monthly rental income of Rs.30,000/- from a house in addition to Rs. 1 Lac per year from the agricultural produce. Her father, brother and son all have spoken about demand of dowry by the petitioner and his earnings.

The petitioner, however, has claimed that he is working as Night-Guard at Jhumaritelaiya and earns only Rs.2500/- per month whereas his son Sonu Kumar is working with Mithila Motors and getting salary of Rs.15,000/- per month. The father of the petitioner has also stated that his son is working as a Night-Guard whereas his grandson is working with Mithila Motors and earning salary of Rs.15000/- per month. The other witnesses examined by the petitioner have also spoken on the same lines.

On the basis of the materials laid before him, the learned Judge, Family Court has held that after upon attaining majority on 13.10.2013, the applicant no. 2 is not entitled for maintenance. On income of the petitioner, the learned Judge has observed as under :

"So far the quantum of maintenance allowance is concerned, there is no any document to show that what is the vocation of the opposite party at present and what is the exact income therefrom. But from the perusal of show-cause filed on behalf of the opposite party and also his evidence it is crystal clear that he himself has admitted that earlier he was working in Delhi in Shyam Packaging and was earning a substantial amount. Admittedly he is a technician i.e. a skilled person and it can be safely presumed that he can earn substantial sum from the said technical knowledge. It is too hard to believe that he will work as a Night Guard as alleged by him that too on a paltry sum of Rs. 2500/- per month. Apart from that it is admitted that the opposite party is the lone son of his father who has a house in the urban area. It has been admitted and there is ample evidence on the record on the basis of which it can be said that the opposite party has some income also from the cultivation."

The proceeding under section 125 of the Code of Criminal Procedure is summary in nature and while adjudicating claim of a wife and the minor child for maintenance under section 125 of the Code of Criminal Procedure the courts are required to keep in mind the object behind section 125 of the Code of Criminal Procedure. The proceeding under Section 125 Cr.P.C is summary in nature and this provision is in the nature of a social and beneficial provision. In "Vimala (K.) Vs. Veeraswamy (K.) reported in (1991) 2 SCC 375", the object behind Section 125 Cr.P.C has been indicated by the Supreme Court in these words :

"3. Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term 'wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Cr.P.C, for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue. The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant. We are, therefore, unable to agree that the appellant is not entitled to maintenance."

On comparative income of the parties, it needs to be recorded that it is not claim of the petitioner that his wife has sufficient income rather claim of his wife that she has no income has not been denied by the petitioner. All that he has done is to show that his son has sufficient income, but then, the application under section 125 of the Code of Criminal Procedure was filed by his wife seeking maintenance from him and not from her son ; at that time her son was a minor.

The above being the factual scenario, keeping in mind limitations of the revisional jurisdiction [refer, "Sheonandan Paswan Vs. State of Bihar" reported in (1987) 1 SCC 288], I am not inclined to interfere in this matter and, accordingly, Criminal Revision No. 895 of 2016 is dismissed.

I.A No. 2161 of 2017 stands disposed of.