JAWAD RAHIM J. - (1.) THIS revision is directed against the dismissal of Crl. Misc. No. 222/2007 dated 04.04.2009 filed under Section 125 of Cr. P.C on the file of Judge, Family Court, Davangere seeking maintenance. In support of the relief, she averred she married the first respondent after demise of his first wife. He was working at BESCOM drawing salary of Rs. 7,000/ - and has since retired. He received Rs. 4,00,000/ - retirement benefit and is now having regular income of Rs. 10,000/ - p.m. He owns residential house and is financially sound. For two years after marriage, he was a loving husband but at the instance of second respondent, Sri. Basavaraj, his son born to the first wife, he neglected her. In the petition, she further averred first respondent was under the ill advise of his son, the second respondent and both of them have neglected her.
(2.) THE first respondent was placed ex parte in the proceedings. The petitioner -wife lead evidence and relied on Certificate of Marriage issued by the Registrar of Marriages under the provisions of Special Marriage Act. She also produced copy of the order in Misc. No. 269/2006 evidencing that first respondent had sought maintenance from his son, the second respondent on the ground he is aged and infirm. The learned trial Judge considered the fact that the first respondent/husband had sought maintenance from his son, the second respondent in C. Misc. No. 269/2006 and since he had retired, opined that no direction could be issued directing him to pay maintenance to the petitioner in the absence of proof regarding his income. Against dismissal of her petition, she is in revision.
(3.) LEARNED counsel for the petitioner would submit that dismissal order is unjust and improper. The first respondent was a permanent employee of BESCOM and was drawing substantial salary. He has received retirement benefit of more than Rs. 4,00,000/ - and is a man of means. He submits that no material was produced by the first respondent to show that he was incapable of making payment. He submits that relationship between petitioner and the first respondent was cordial till the second respondent (son of the first respondent) interfered with their life. He submits that both the respondents are liable to maintain the petitioner. I am unable to accept the grounds so urged. Petitioner's evidence neither establish financial position of the first respondent nor it establish his capacity to generate enough money to pay her maintenance. The first respondent is shown as aged seventy years whereas the petitioner is aged forty years. So far as the second respondent is concerned, admittedly he is her step son. Therefore, I find no infirmity in the order of the learned trial Judge dismissing the petition.;