Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1632 (RAJ)

Mohd. Jakir v. State of Rajasthan

2018-08-02

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kumar Garg, J . - Heard the learned Counsels for the parties. 2. The present revision petition has been filed by the petitioner against the order dated 12.2.2018 in Criminal Misc. Case No. 16 of 2016 whereby, learned Judge, Family Court, Banswara allowed the application filed by the respondents under Section 125 Cr.P.C., 1973 directing the petitioner to pay maintenance in the sum of Rs. 2500/- per month to respondent wife, Rs. 2000/- to respondent son and Rs. 1500/- each to respondent daughters, thus Rs. 9000/- in total. 3. Learned Counsel for the petitioner submits that the respondent No. 2 herself left the matrimonial house of the petitioner alongwith children, therefore, there is no question of granting any alimony to respondent No. 2 It is further argued that petitioner has remarried and out of said wedlock two children were born, therefore, he is unable to pay the amount of maintenance as ordered by the Court below is also submitted that the respondent has filed the application only with a view to harass the petitioner, and therefore, the impugned order is liable to be quashed and set aside. 4. After hearing learned Counsel for the petitioner, I have perused the impugned order and scanned the entire record. 5. Section 125 of the Code makes provision for the grant of maintenance to wives, children and parents. Sub-section (1) of Section 125 inter alia says that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. section 125(4) of the Cr.P.C., 1973 reads as under: "125. Order for maintenance of wives, children and parents, - 1. xxxxx 2. xxxxx 3. xxxxx 4. No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. 5. No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. 5. On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 6. A holistic reading of the provisions would clearly reveal that responsibility and liability of a person to maintain his wife, children and parents rests on the condition that if any person having sufficient means neglects or refuses to maintain them (wife, children, parents), he can be ordered to make a monthly allowance for maintenance of his wife or child or parents at such monthly rate. The sub-sections 4 and 5, categorically makes it clear as to when the wife is not entitled to maintenance. It is specifically enacted by the legislature that the wife is not entitled to receive maintenance if she is living in adultery or if she refuses to live with her husband without any sufficient reason or that they are living separately by mutual consent. 7. In the instant case, the respondent No. 2 wife in her application, has clearly stated that the petitioner in order to conduct second marriage, turned her out of matrimonial home. The respondent wife is living alongwith her four kids out of which three are daughters, therefore, the amount of maintenance awarded by the Family Court cannot be said to be excessive. 8. In view of the above, the learned Court below has not committed any error in awarding maintenance to the respondent wife and children as per section 125 of Cr.P.C., 1973 Hence, this revision petition is hereby dismissed.