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Himachal Pradesh High Court · body

2009 DIGILAW 235 (HP)

PREM LAL v. USHA DEVI

2009-03-30

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J(Oral):- In the present revision petition the order dated 17.8.2001 passed by learned Judicial Magistrate, Ist Class, Chopal in Petition No. 45-4 of 2000 has been assailed, whereby the petitioner-wife was awarded maintenance @ Rs.400/- per month and petitioners No. 2 and 3-children each were awarded maintenance @ 300/- per month, on the ground that the learned court below has failed to appreciate the fact that the petitioner-husband worked on a part-time daily waged in the village and the work is not available throughout the month. While fixing the amount of maintenance the trial court did not taken this fact into account and further that there was no proof of neglect or refusal on the part of the husband to maintain the respondents. 2. The matter was fixed for final hearing. Neither the petitioner nor his counsel has put in appearance today in the court. I have heard Sh. Rakesh Jaswal, vice learned counsel for the respondent and have carefully gone through the record. 3. In fact, the relationship inter se the parties as put forth stands admitted. Respondent No.1 Smt.Usha Devi sought maintenance for herself and also on behalf of the minor sons Ashwani and Abhimanayu by filing a petition under Section 125 Cr.P.C. at the rate of 500/- per month to each of them on the ground of neglect, refusal and also raising illegal demand to bring more money from her mother whereas she had already paid an amount of Rs.20,000/- to him, when her mother received gratuity and other emoluments after the death of her husband, who was serving as Baliff in the court of Sub Judge, Chopal. It was contended that the petitioner-husband being an able bodied man and has also sufficient means of income from agriculture and also working on part time basis. It was alleged that the respondent unnecessarily sent a notice through Panchayat which was adequately replied and she also sent a notice through her Advocate claiming maintenance but despite that the respondent did not care for them. 4. The application was resisted and contested by the petitioner-husband on the ground that there was no sufficient reason to his wife to live separately. While denying the allegations made in the application he submitted that the application is false and frivolous. According to him he had sent reply of the notice sent by the respondent-wife. 5. 4. The application was resisted and contested by the petitioner-husband on the ground that there was no sufficient reason to his wife to live separately. While denying the allegations made in the application he submitted that the application is false and frivolous. According to him he had sent reply of the notice sent by the respondent-wife. 5. In order to substantiate her plea, the petitioner No.1 (wife) led the evidence whereas respondent-Prem Lal examined himself as RW-1 and also produced Sh. Bhagat Ram (RW2) (wrongly mentioned as PW2) and Sh.Beli Ram (RW3) . After appreciating the evidence led by both the parties, the learned trial Court came to the conclusion that it was a case of neglect and refusal of the respondent-wife by the petitioner-husband as such allowed the petition and awarded the maintenance as aforesaid. 6. Smt. Usha Devi-respondent No.1 has testified on oath about neglect and refusal by her husband and she categorically stated that the petitioner-husband had been demanding the money from her mother and the amount of Rs. 20,000/- already paid to him by her mother on receipt of the gratuity of the deceased husband. She further deposed that she along with her children was ousted from the matrimonial house by her husband. Both the minor children are school going and she herself was suffering from the disease. Further according to her she was called in Police Station, Dhami along with her mother where the petitioner-husband admitted to take them to his house but he did not honour the undertaking. She categorically stated that the petitioner-husband never visited in the matrimonial house to take her along with the children but, however he managed to send a notice (Ext.P-1) to her through the Panchayat which was suitably replied and thereafter she also sent a notice (Ext.P-3) through her Advocate demanding maintenance amount from the petitioner-husband. This fact was corroborated by her mother Smt. Ramla Devi (PW2). According to her, the petitioner-husband was giving beatings to her daughter and ultimately she along with her children was ousted from the house. She also stated about giving the amount of Rs.20,000/- to the petitioner. PW3 Sh.Sania Ram has deposed that petitioner-husband being an able bodied man and gainfully earning as a daily wager failed to maintain his wife and children, who are living in the house of her mother. 7. She also stated about giving the amount of Rs.20,000/- to the petitioner. PW3 Sh.Sania Ram has deposed that petitioner-husband being an able bodied man and gainfully earning as a daily wager failed to maintain his wife and children, who are living in the house of her mother. 7. The petitioner-husband examined himself in the Court to rebut the case of his wife. He denied maltreatment as alleged or demand of money. He stated that he has only 2-3 bighas of land which is owned by 3-4 persons. He did not have any source of income and further that respondent No.1 had left his house along with the children on the pretext that she had to go to the house of her brother and would return within 1-2 days but thereafter she did not join his matrimonial company. Further according to him, he went to take the respondent to his village but she refused to return. He also examined RW2 Sh.Bhagat Ram and PW3 Beli Ram to substantiate his version that they had accompanied the petitioner herein to bring back his wife but she refused. 8. On meticulously examination of the aforesaid evidence, it comes to the fore that due to some dispute the respondent-wife left the company of her husband along with children. The payment of Rs.20,000/- by her mother out of the gratuity amount, to the respondent is also prima-facie proved. His offer for rehabilitating his wife is also not bonafide as he did nothing to materialize that. He even did not send any amount to meet the expenses to return to her matrimonial house along with the children. The fact of visiting the house of her mother by him along with RW2 and RW3 is an after thought. This fact was also not put to the respondent-wife and her mother in cross-examination. The petitioner-husband is an able bodied person and also works on daily wages. He is under the obligation to maintain his wife and the children they cannot be left without any maintenance to face the vagaries of nature. The neglect and refusal from the evidence on record is a writ large and the maintenance awarded by the learned trial Court is quite reasonable and the impugned order does not suffer from any illegality and no law point is involved. The facts were rightly appreciated by the learned trial Court, therefore, no interference is called for. The neglect and refusal from the evidence on record is a writ large and the maintenance awarded by the learned trial Court is quite reasonable and the impugned order does not suffer from any illegality and no law point is involved. The facts were rightly appreciated by the learned trial Court, therefore, no interference is called for. Accordingly the revision petition is dismissed.