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2012 DIGILAW 807 (RAJ)

Dau Singh v. State of Rajasthan

2012-04-03

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order dated 1.11.2007 passed by the learned Additional Chief Judicial Magistrate, Bikaner in Criminal Miscellaneous Application No. 6/2006 allowing the application filed by the respondents No. 2, 3 and 4, who are the wife and children, respectively, of the petitioner and directed the petitioner to make payment of Rs. 3,000/- per month, in all, to the respondents from the date of the application, as affirmed by the learned Additional Sessions Judge No. 2, Bikaner by the Impugned order dated 15.7.2008 passed in Criminal Revision No. 210/2007 2. Succinctly stated, the facts of the case are that the respondents No. 2 to 4 herein filed an application tinder Section 125 Cr.P.C. with the averments that the respondent No. 2 was married to the petitioner on 14.7.1991 and two children, viz. Shiv Narain and Dharam Narain, were born from the wed-lock. It was averred in the application that right from the time of the marriage, the petitioner started harassing the respondent No. 2 (wife) on account of bringing less dowry and that ultimately turned her out of his house along with the children because the demand of the petitioner for a motorcycle was not satisfied. It was also averred in the application that the petitioner was working as a Helper in the Electricity Department and was also having additional income by doing private jobs. 3. The petitioner (husband) contested the application and submitted that the respondent (wife) was living separately without any justification and that she wanted to keep the petitioner in her parental house and when the petitioner did not accede to this demand, she left the house of the petitioner without any justification, thus, the respondent (wife) and the children were not entitled to claim and receive any maintenance. 4. The learned Magistrate, after a detailed consideration of the evidence, proceeded to hold that the petitioner had neglected to maintain his wife and children and thereafter directed the payment of maintenance to the wife and children, as mentioned above. The petitioner challenged the order dated 1.11.2007 by way of filing a revision petition, which has been rejected by the learned Revisional Court vide order dated 15.7.2008, hence the instant miscellaneous petition. 5. The petitioner challenged the order dated 1.11.2007 by way of filing a revision petition, which has been rejected by the learned Revisional Court vide order dated 15.7.2008, hence the instant miscellaneous petition. 5. Assailing the orders impugned passed by the learned Courts below, learned counsel for the petitioner submits that in this case the respondent No. 2 (wife) was guilty of deserting the petitioner without any justifiable reason and, thus, neither she nor her children were entitled to receive maintenance from the petitioner. It is also submitted that the respondent No. 2 filed a case under Section 498-A I.P.C. against the petitioner and in the said case, the matter was compromised inter se between the parties and the petitioner was acquitted of the charges, thus, it becomes apparent that the application under Section 125 Cr.P.C. was filed with a mala fide intention. It is also submitted that the respondent No. 2 has not been able to establish that she was not able to maintain herself and her children. 6. Per contra, Mr. S.K. Verma, learned counsel appearing for the respondents submits that the petitioner has neglected to maintain his wife and children and has made no efforts for providing any means of maintenance to them. He further submits that the petitioner did not make any effort to take care of his children so much so that he has shown total ignorance about the up-keep and education of his children. He further submits that the counsel for the petitioner has stressed much on the testimony of the witness Bhanwar Singh NAW 1, who is the father of the respondent No. 2 but it is an admitted position that NAW 1 Bhanwar Singh has also deserted his wife (i.e., the mother of the respondent No. 2) and there are disputes inter se between the parties and thus he has deliberately given evidence against the respondents. It is also prayed that a direction needs to be issued that the quantum of maintenance should be enhanced because the amount of Rs. 3,000/- per month, in all, for three persons is absolutely, insufficient. Pointing out to the statement of petitioner's witnesses, it submitted that witness Bhanwar Singh NAW 1. has admitted that one child needs at least Rs. 1500/- per month for his maintenance, education etc. 3,000/- per month, in all, for three persons is absolutely, insufficient. Pointing out to the statement of petitioner's witnesses, it submitted that witness Bhanwar Singh NAW 1. has admitted that one child needs at least Rs. 1500/- per month for his maintenance, education etc. The statement of NAW-2 Devi Singh has also been pointed out to this Court, -., ho has admitted that petitioner Dau Singh is a member of a well-to-do family and he has no liability except for the maintenance of his wife and children. A specific reference has been made to the statement of the petitioner, in which he has admitted, on being cross-examined, that he does not know anything about the educational status of his children and that he did not make any attempt to bring back his wife and children. He has also admitted that he did not comply with the directions of the Court below to make payment of interim maintenance 'o ill respondents. Thus, it is submitted that the petitioner, having failed to maintains his wife and children, has been rightly directed to make payment of maintenance as mentioned above, rather the award of maintenance should be enhanced because the petitioner is a Government servant and is earning handsomely. 7. I have given my thoughtful consideration to the rival arguments advanced at the bar and carefully gone through the impugned orders and the material placed on record. 8. From a perusal of the evidence available on record, is apparent that the petitioner has deliberately and willfully neglected to maintain his wife and children. The petitioner is a Government servant and he has shown an absolute ignorance and apathy about the up-keep and well-being of his children. He has even admitted that he is not aware of the status of education of his children. He has also admitted that he did not comply with the directions of the Court to make payment of interim maintenance to his wife and children. Thus, in the opinion of this Court, the learned Courts below have rightly found that (1) the petitioner had turned out his wife and children from his house without any justification, (2) the wife and children of the petitioner are not all to maintain themselves, and (3) that the petitioner is having sufficient sour,'s of income to maintain his wife and children. Thus, the application filed h' the respondents has been rightly allowed by the learned trial Court and affined by the learned Revisional Court. 9. However, the question of enhancement of maintenance can be better appreciated in the event of an application under Section 127 Cr.P.C. being filed by the respondents before the learned Court below. Therefore, it is hereby directed that if such an application under' Section 127 Cr.P.C. is filed by the respondents, the learned Court below shall be under an obligation to consider and decide the same in accordance with law keeping in view the hike in the cost of living since the date when the application under Section 125 Cr.P.C. was decided. 10. Thus, whilst rejecting the miscellaneous petition, it is hereby directed that the learned trial Court shall issue warrants for recovery of the arrears of maintenance and the current maintenance amount from the petitioner. If the petitioner falls to make payment of the arrears of maintenance and current maintenance, then the warrants of recovery, as provided under Section 125(3) Cr.P.C., shall be issued by the Court below forthwith. If the petitioner fails to make payment of monthly maintenance amount by 10th of each month then the learned Court below shall forthwith issue a warrant of recovery thereof and if so required, the salary of the petitioner shall be attached and the recovery shall be made therefrom. It is made clear that no formal application in this regard shall be required to be filed by the respondents. The stay petition stands rejected.Petition dismissed. *******