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2015 DIGILAW 1123 (MP)

Rajendra Kumar v. Kanchan Sahu

2015-10-26

C.V.SIRPURKAR

body2015
ORDER 1. This criminal revision is directed against the order dated 15.9.2012 passed by the Court of Sessions Judge, Tikamgarh, in Criminal Revision No.7 of 2012, whereby the amount of maintenance under section 125 of the Code of Criminal Procedure, supposedly granted to respondents No.2 and 3 Kumari Sejal and Uday was enhanced from Rs.500/- to Rs.1000/- per month. 2. The facts necessary for disposal of this criminal revision may be summarized as follows: Respondents Kanchan, Sejal and Uday moved an application under section 125 of the Code of Criminal Procedure for maintenance against the revision petitioner husband Rajendra Kumar in the Court of Judicial Magistrate First Class, Niwadi, District Tikamgarh. The application was registered as Miscellaneous Case No.61 of 2011. After trial, learned Magistrate held that respondent No.1 Kanchan is legally wedded wife of revision petitioner husband Rajendra Kumar and respondents Sejal and Uday are their legitimate children. Respondent Kanchan is unable to maintain herself and respondents Sejal and Uday. Revision petitioner Rajendra, inspite of having sufficient means, is refusing or neglecting to maintain the respondents Kanchan and Uday. Respondents Sejal is living with her father revision petitioner Rajendra; therefore, revision petitioner was directed to pay maintenance @ of Rs.1000/- per month to respondent Kanchan and Rs.500/- per month to respondent Uday. 3. The order dated 14.12.2011 passed by Learned Magistrate granting maintenance as above, was challenged before the Court of Sessions Judge, Tikamgarh, on behalf of the respendents, in Criminal Revision No.7 of 2012 on the ground that it was insufficient, keeping in view the expenditure likely to be incurred on their education. Learned Sessions Judge enhanced the amount of maintenance @ Rs.500/- per month to each of them, to Rs.1000/- per month. 4. The order dated 15.7.2012 passed by Sessions Judge, Tikamgarh enhancing the maintenance as about is subject matter of challenged before this Court in the instant revision petition. It has been filed mainly on the grounds that learned Courts below erred in holding that the revision petitioner husband is neglecting or refusing to maintain the respondents because respondent Kanchan is staying away from the revision petitioner husband without any just or reasonable cause. Respondent Sejal is already living with the revision petitioner. It was further submitted that the respondents did not adduce any evidence regarding income of the revision petitioner husband; even then learned Courts below awarded the maintenance to the respondents. 5. Respondent Sejal is already living with the revision petitioner. It was further submitted that the respondents did not adduce any evidence regarding income of the revision petitioner husband; even then learned Courts below awarded the maintenance to the respondents. 5. After perusing the record of the Courts below and hearing the arguments of learned counsel for the parties, this Court is of the view that the revision petition deserves to be allowed partly, for the reasons hereinafter stated. 6. So far as income of the revision petitioner husband is concerned, it is not in dispute that he is an able bodied person and is; thus, morally, social and legal liable to maintain his wife and children. Even if we presume that he does not earn anything from the grocery shop or his alleged business of buying and selling land, the Court may fix his income on the basis of notional income.(Please see Harish v. Kavita [ 2008(1) MPWN 23 =2007(4) MPLJ 137)]. As such, a sum of Rs. 1000/- per month to legally wedded wife and Rs.1000/- to the child below five years of age cannot said to be excessive. Thus, no interference on this ground is warranted. 7. In examining the plea of the revision petitioner husband that wife is living away from him without any just or reasonable cause, it may be seen that the learned Magistrate has considered the evidence available on record and after assigning cogent reasons has arrived at the finding that the respondents wife is living away from the husband on account of dowry harassment; therefore, even this finding is also not liable to be interfered with in revisionary jurisdiction. 8. However, it may be noted that the respondent wife had admitted during her cross examination that respondent Sejal is living with her husband; therefore, learned Magistrate had awarded maintenance only to the respondent wife and son Uday. Learned Revisionary Court did not only enhanced the maintenance from Rs.500/- per month to 1000/- per month payable to respondent Uday but also directed that the amount payable to respondent Sejal be enhanced from Rs.500/- per month be enhanced to Rs.1000/- per month, without taking notice of the fact that no amount has been awarded for Sejal in view of the fact that admittedly, she is living with revision petitioner husband. No reasons have been given in the impugned order as to why amount of maintenance is being awarded for Sejal. Since, the matter has not been adverted to at all in the impugned order, it seems that maintenance @ Rs.1000/- per month has been granted to Sejal due to inadvertence. As such, the impugned order, so far as it directs grant of maintenance to Sejal @ 1000/- per month, is not sustainable and is liable to be set aside. Remaining part of the order does not call for any interference. 9. Consequently, this criminal revision is partly allowed. The impugned order passed by the learned Sessions Judge so far as it relates to payment of maintenance allowance to respondent Sejal, is set aside. Rest of the order, directing payment to wife Kanchan @ Rs.1000/- per month and to son Uday @ Rs.1000/- per month, is affirmed.