- (1.) This revision has been directed against the order dated 14.11.1995 passed by the Judge Family Court, Gorakhpur in Criminal Misc. Suit No. 41 of 1994 allowing the application of the Respondent No. 2 by awarding Rs. 400 per month as maintenance.
(2.) Sri Tripathi B.G. Bhai has submitted that the allegation of torture on the basis of claiming dowry has not been proved. The Respondent No. 2--wife was having mental disorder and while she was being treated at Gorakhpur, on one occasion she got down to the house of the parents on the way and refused to go with the revisionist and claimed maintenance on false allegations. It has also been submitted that the income of the revisionist is not sufficient to pay the awarded amount. Sri O.P. Srivastava learned Counsel for the Respondent No. 2 has referred the cross-examination of the revisionist examined before the Judge Family Court wherefrom it appears that on the date of his examination she was present at court room. The revisionist thereby admitted that she was not showing any unusual gesture and posture befitting to mental patients. It has also been stated "Kabhi Bhi Usne Pagal Aurat Ke Tarah Se Aacharan Nahi Kiya"
(3.) Learned Judge has held that no sufficient corroborating the evidence was tendered before him. It was stated on behalf of the revisionist that the Respondent No. 2 was being treated at Gorakhpur Hospital but he has not produced any document in corroboration of the said statement. Moreover, from his deposition there is sufficient material to come to a conclusion that the allegation on this account was not true. Learned Counsel has also alleged that the revisionist has no sufficient means to pay the awarded amount. Respondent No. 2 has deposed that his monthly income was Rs. 20,000 as they were jewellers by profession. Besides that, he is an agent of L.I.C. The revisionist in his deposition has stated that it was his family business to manufacture gold ornaments but it was being done by his father and at present, it is being done by his elder brother, who is living separately. He has further stated that he earns Rs. 500 to Rs. 600 by coaching students. He does not have any landed property. No evidence is forthcoming to corroborate the statement of the revisionist that the jewellery shop is at present in possession of his elder brother and that he is living separately. When he has admitted that the said business was being run by his father, so the onus rests on him to prove that it is being looked after by his elder brother who also does not live in joint mess. He has not denied the allegation that he is L.I.C. agent. Xerox copy of a document from L.I.C. has been submitted as Annexure-3 but there is no averment that it was filed before the trial court or it was duly proved. The learned Judge has, therefore, rightly observed that on this point, the revisionist remained silent. Considering these circumstances, I do not consider that the finding of the learned Judge Family Court, Gorakhpur in this respect is erroneous. Moreover, in Har Deo Singh v. State of U.P.,1995 ACC 35, it has been held that even if the husband becomes a Sadhu, it does not absolve him from the duty of maintaining his wife and children. As regards the torture for non-payment of dowry, it is stated by the Respondent No. 2 that for that reason she was deserted. In cross-examination, the revisionist has stated that "Woh mere saath rahne ke liye bar bar aati hai". If a wife inspite of the said incident and false allegation of being a mental patient wants to build up a matrimonial home but the said request has not been considered by the husband, for this reason alone I feel that the wife is entitled to get maintenance. Moreover, false allegation against the wife for being mental patient itself amounts to torture which the court cannot ignore.;