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1985 DIGILAW 916 (ALL)

Pradeep Kumar Agarwal v. Sunita

1985-09-28

P.DAYAL

body1985
JUDGMENT Parmeshwar Dayal, J. - This revision has been directed against the judgment and order dated July 28, 1984, passed by Sri Jitenira Singh, Vth Munsif-Magistrate, Lucknow in proceedings under Section 125, Criminal Procedure Code (Case No. 767 of 1980), directing the revisionist Pradeep Kumar Agarwal to pay Rs. 400/- per month as maintenance to the opposite party No. 1 Smt. Sunita from the date of application and Rs. 200/- per month for the maintenance of opposite party No. 2 Km. Nidhi Agarwal from the date of her birth. 2. The revisionist Pradeep Kumar Agarwal is the husband of the opposite party No. 1 Smt. Sunita. The opposite party No. 2 Km. Nidhi Agarwal is a minor aged about 6 years who was born from their wedlock. The marriage of the revisionist and the opposite party No. I had taken place in October, 1978 and the opposite party No. 2 was born on December 18, 1979 The opposite party No. 1 Smt. Sunita was brought by her father to his house in Lucknow on January 25, 1979. The opposite party No. 2 was born and brought up at Lucknow She graduated herself. The petitioner lived at Biswan town, district Sitapur where his father had some business. 3. The opposite parties filed an application under Section 125, Criminal Procedure Code The revisionist contended that his wife wanted him to live with her father at Lucknow as she did not like to reside in Biswan Town after having been in Lucknow since her birth. 4. After the parties adduced their evidence, the learned Magistrate passed the impugned order. Hence this revision. 5. It is an admitted case of the parties that the father of the opposite party No.1 had started proceedings under Section 400, Criminal Procedure Code against the petitioner which proceedings were quashed by High Court under Section 482, Criminal Procedure Code A case under the Dowry Prohibition Act is still pending. A suit for dissolution of marriage was filed by the opposite party No.1 which was decreed and which decree became final. 6. There is no doubt that a divorced wife is entitled to maintenance. Only this much has to be seen in this revision that if the learned Magistrate rightly fixed the amount of maintenance for the opposite parties. 7. The revisionist claimed that his income was Rs. 6. There is no doubt that a divorced wife is entitled to maintenance. Only this much has to be seen in this revision that if the learned Magistrate rightly fixed the amount of maintenance for the opposite parties. 7. The revisionist claimed that his income was Rs. 250/- per month which amount is given to him as pocket money for looking after the business of his father and uncle. The learned Magistrate has fixed the amount of maintenance for the opposite parties at Rs. 600/- per month. But the Magistrate referred to the affidavit of the father of the petitioner wherein, it was sworn on oath that the father and the uncle of the petitioner were premier business man of Biswan town dealing in gold and silver ornaments along with clothes, utensils steel and general merchandise etc. Also, they owned trucks which were plied on hire and the petitioner Pradeep Kumar Agarwal is the only son of his father who looked after the business of the family. 8. The affidavit filed by the father of the petitioner itself shows that the petitioner's father and uncle have a roaring business in various articles including gold and silver ornaments and they owned trucks also. The petitioner is the only son of his father who looks after the business of the family. So, it is not believable that his income is confined to Rs. 250/- per month only which is alleged to be given to him as his pocket money. He earns a sizeable income by looking after the business of his family and he has a sizeable share in the income of his family as he happens to be the only son of his father. On the other hand, the opposite party No. 1 Smt. Sunita is as graduate and she is not earning anything. She has her minor daughter also, the opposite party No.2 to maintain. So the amount of Rs. 400/- per month as a maintenance allowance to the opposite party No. 1 has been rightly fixed by the learned Magistrate. 9. As about the amount of Rs. She has her minor daughter also, the opposite party No.2 to maintain. So the amount of Rs. 400/- per month as a maintenance allowance to the opposite party No. 1 has been rightly fixed by the learned Magistrate. 9. As about the amount of Rs. 200/- per month to the opposite party No. 2 (a minor) the learned Magistrate directed the revisionist to pay this amount from the date of the birth of the opposite party No. 2 it has been laid down in sub-section (2) of Section 125, Criminal Procedure Code that such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. Therefore, the learned Magistrate transgressed the provisions of law by directing the payment of maintenance allowance to the opposite party No.2 from the date of the birth of the opposite party No.2. The opposite party No. 2 also deserves to he given the maintenance allowance from the date of the application as it was ordered for the maintenance allowance to be paid to the opposite party No. 1. The date of application was April 16, 1980. Hence this revision partly succeeds, 10. The revision is partly allowed to the extent that the amount of maintenance, payable to the opposite party No.2 Km. Nidhi Agarwal (Minor) shall be payable from the date of the application i. e., from April 16, 1980, while the rest of the revision is dismissed and the rest of the order, passed by the learned Magistrate, is confirmed.