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Madhya Pradesh High Court · body

2016 DIGILAW 683 (MP)

Mohammad Aslam v. Tabassum

2016-08-10

J.P.GUPTA

body2016
ORDER 1. This criminal revision has been filed against the impugned order dated 25.6.2015 passed by Principal Judge, Family Court, Chhindwara in Miscellaneous Criminal Case No.273/2014 whereby application filed by respondent under section 125 of the CrPC has been allowed and the applicant was directed to pay Rs.4,000/- per month towards maintenance to the respondent/wife. 2. The impugned order has been challenged on the grounds that the learned lower Court has overlooked the fact that the respondent is living separately without any sufficient cause and also has sufficient means to maintain herself. Apart from it the finding of the learned lower Court regarding income of the applicant is based on the surmises and conjecture, as there is no reliable evidence to justify the finding, hence the impugned order is contrary to law and caused miscarriage of justice, therefore, the same be set aside. 3. Learned counsel for the respondent contended that the impugned order is legal and not required any interference. In the revision factual finding cannot be challenged unless the same is perverse. This case is not of such nature and the maintenance amount is also not so excessive, which warrants interference of this Court, hence the revision petition be dismissed. 4. Having considered the submissions made by learned counsel for the parties and perusal of the record it is evident that after appreciation of evidence on record the learned lower Court has categorically gave its finding that on account of maltreatment the respondent is living separately. Apart from it respondent has expressed her wish to live with the applicant, but the applicant has not responded in this regard. Similarly, on the basis of evidence on record, the learned lower Court has gave its finding categorically that the respondent has no means to maintain herself. 5. So far as the finding recorded by the learned lower Court regarding income of the applicant is concerned, apparently it is based on the estimation, without the proof of any relevant fact. Learned lower Court has stated that as the applicant is having a hotel (dhaba) at the National Highway No.7, therefore, he might have earned near about Rs.20-30,000/- per month. Learned lower Court has stated that as the applicant is having a hotel (dhaba) at the National Highway No.7, therefore, he might have earned near about Rs.20-30,000/- per month. This finding is apparently based on surmises and conjecture as on perusal of the record it appears that there is no clear, specific and reliable evidence on record to prove that the applicant has a hotel (dhaba) at National Highway No.7, as he has stated that he is working in the hotel and the same statement has been given by the neighbour of the hotel. In the cross-examination Mohammad Samad (non-applicant witness No.2) has stated that it is correct that beside his shop there is applicant's biryani shop, but if this statement is read with the statement given in the chief-examination, it cannot be said that the statement of Mohamme Samad is sufficient to hold that the applicant is not working on the hotel as a servant and he is owner of the hotel. 6. In the aforesaid circumstances, without relevant and reliable evidence regarding the proof of income of the applicant it cannot be imagine that the income of the applicant is Rs.20,000/- per month. 7. In the aforesaid facts and circumstances the income of the applicant ought to have been considered on the basis of minimum wages declared by the Collector for the unskilled worker, which is near about Rs.6,000/- per month. Hence, the income of the applicant ought to have been considered @ Rs.6,000/- per month. 8. On perusal of the record it also appears that one son and daughter borne out of the wedlock with the respondent are also residing with the applicant. In the aforesaid circumstances I am of the considered opinion that the amount of maintenance awarded by the learned lower Court appears to be on higher side, which ought to have been @ Rs.2,000/- per month. 9. In view of the above discussion this revision is partly allowed and the impugned order is modified to the extent that the applicant shall pay Rs.2,000/- per month instead of Rs.4,000/- per month to the respondent towards maintenance. To that extent the impugned order passed by the learned lower Court is modified. 10. Accordingly, the revision petition stands disposed of. Sachin Pandey for applicant; Jaideep Sirpurkar for respondent.