V.P.Mathur - (1.) THIS criminal revision is directed against the judgment and order passed on 1-12-1984 by Shri Ashok Srivastava, Judicial Magistrate (Second) Jaunpur. The learned Magistrate was disposing of Criminal case no. 296 of 1983 instituted by Smt. Raj Kumari Sahu against her husband Satish Kumar Sahu for maintenance under the provisions of section 125 of the Code of Criminal Procedure.
(2.) SOME brief facts relevant to the present matter may be enumerated. There was no dispute between the parties as regards their marital status. It was also admitted that the marriage took place on 3-2-1982, according to Hindu rites. The wife remained with the husband's family according to custom for about one month and then returned back to her father's house. Then the ceremony of Donga (second marriage) was performed and she went back to her in-laws. It is also undisputed that with effect from 25-7-1982 she is now living with her parents'. Her contention is that she was treated cruelly, threatened with being shot dead and brought to Jaunpur and left uncared of and she came to her father's house On the contrary, the husband's contention is that there was no cruelty. The lady perhaps did not like her husband and therefore did not want to live with him and it was her brother who brought her to her parents' house on 25-7-1982. According to the written statement, the husband took the stand that in view of the differences that have arisen between the parties it would not be possible for them to amicably live together and therefore he was prepared to allow the wife to live separate from him at her father's house. He also took the stand that though she was not entitled to any maintenance allowance as she was herself well to do, yet he was prepared to pay her such maintenance amount as is fixed by the Court. It appears that evidence started and Smt. Raj Kumari entered the witness box. Her examination-in-chief was not concluded when on 2-8-1984 the recording of the statement was deferred. It appears from the note of the learned Magistrate that this was done because the parties' learned counsel expressed the opinion that there was no dispute left except one namely the amount of maintenance allowance to be fixed and hence further examination of the witnesses was unnecessary. Nevertheless, the learned Magistrate had to decide the question, as to what amount of maintenance allowance, the wife was entitled to get and as to what the husband was capable to pay. This discretion ought to have been judicially exercised and not arbitrarily foisted, which has been done in this case. It was necessary for the learned Magistrate to have called upon the parties to adduce evidence on this aspect of the matter, but this was not done and a sum of Rs. 350/- per month has been fixed by way of maintenance allowance for the wife without any justifiable basis. I may point out that in the written statement filed by the husband in para-22, he clearly made a mention of the fact that his only business was that of registered money lender, from which he was making an income of approximately Rs. 5779-00 per year, which would come in the neighbourhood of Rs. 480/- per month. He specifically mentioned that the wife's contention that he was having an income of Rs. 50,000/- per year was absurd and wrong and further that the allegation that he owned any house or shop or any Ghee or oil business in Lucknow or at any other town was also incorrect. According to him, the house in which he was living was a rented house under the tenancy of his father. The Ghee and oil shop in Aminabad (Lucknow) of which the plaintiff has made a mention in her petition, is owned by the husband's uncle Durga Prasad, who lives separate from his father. Thus the contentions of the husband were not repelled at all. He appended to para 22 of his written statement the statement of his income from 1-4-76 to 30-9-1984 which went to support his contention that his annual income could not be beyond Rs. 5779-00 per year or Rs. 484-00 per month. This being so, fixing the amount of maintenance allowance at Rs. 350/- per month was absolutely uncalled for and the learned Magistrate, it appears, has not applied his mind to the facts and circumstances of the case. In view of the fact that the husband is prepared to pay maintenance allowance to his wife and does not want to contest the petition on merits, the question still remains as to what amount should be fixed and I am of the view that when the monthly income of the husband is in the neighbourhood of Rs. 480/- per month the wife cannot be allowed a maintenance allowance of more than Rs. 150/- per month.
(3.) THIS being so, the revision is allowed in part. The order of the learned Magistrate granting maintenance allowance to the wife effective from the date of the application under section 125 CrPC is upheld, but the amount is reduced to Rs. 150/- per month. Revision allowed.;