SHARMA, J. - (1.) ON an application filed by the appellant Smt. Jaspal Kaur, wife of the respondent Manjeet Singh u/s 125 Cr. P. C, the learned Judge, Family Court under its order dated 25. 05. 1990 disallowed the application so far as the appellant is concerned, but allowed it in respect of the minor daughter of the appellant and ordered that the respondent shall pay a sum of Rs. 300/- per month for her maintenance.
(2.) THE appellant has filed this appeal against the aforesaid order in so far as the said order denied the maintenance to her. Some facts are no longer disputed and, they are these: The marriage of the parties took place on 14. 06. 1984 and out of the wedlock a female child was born sometime in the year 1985. The parties are living separately since the month of May 1985 and when the appellant is said to have been turned out of the house by the respondent, she was carrying the pregnancy and delivered a female child at the house of her parents at Ajmer. The respondent did not even care to visit or see the child which was born as aforesaid, did not care to lookafter his wife and the child and therefore, an application for restitution of conjugal rights was filed in Family Court, Ajmer by the appellant herein and in that application a decree for restitution of conjugal rights against the respondent and in favour of the appellant was made on 27. 05. 1989. Despite the decree it appears that the parties did not resume the cohabitation. An application u/s. 125 Cr. P. C. was filed in the court of learned Judge, Family Court, Ajmer for maintenance on the ground that the respondent has neglected and refused to maintain her though he has sufficient means to maintain. The appellant has no independent means of her own to maintain herself and minor child. It was the case of the appellant that the respondent has monthly income of Rs. 1300/- per month. The learned Judge, Family Court, after recording the evidence of the parties, did not believe the case of the appellant as set up by her that the respondent treated her in a crual manner, turned her out of the house and also asked her to bring dowry from her parents. The learned Judge hold that the appellant failed to prove neglect or refusal to maintain her and dismissed the application as far as maintenance is concerned but allowed the maintenance to her minor daughter. When the case came up before us, we directed both the parties to live together for two months and gave them opportunity to try a fresh to live together. It can be said that thereafter, the appellant and the respondent appears to have remained together from 10th January 1991 to 14th February 1991 at Neemach where the respondent is employed as Professor in a college. But thereafter, as per the case of the appellant, because she was not even then treated properly, the respondent used to leave the house in the early morning and return in the late night, she returned back to Ajmer to her parents with her brother and since then is residing there. The parties have examined their witnesses in this court and their statements have been recorded.
(3.) THE question as to whether the case of refusal or neglect by the respondent of the appellant is made out or not? In such cases we are to go by human probability. As said earlier the marriage had taken place on 14th June 1984, the parties remained together upto May 1985 and at that time the appellant was pregnant and is said to have been turned out from the house. Normally a pregnant wife will not leave the house of the husband on her own and moreso when the husband is Professor, having good income and sufficient means to maintain her and child. She delivered a female child as said earlier and there is no material that the respondent after the birth of the child at all went to Ajmer to see the child atleast once. THE wife, the appellant herein, filed an application for restitution of conjugal rights. A decree for restitution of conjugal rights in favour of the appellant and against the respondent was made and it is not disputed by the learned counsel for the respondent, and even then no efforts have been made by the respondent to see that his wife returns to him. In these circumstances, if the husband does not care for his wife, does not care to maintain his minor daughter, it is a case of neglect or refusal to maintain his wife and child. A look at the reply to the application u/s 125 Cr. P. C. will show that the respondent has even gone to the extent of levelling the allegations of unchestity against the appellant. A look at the additional pleas of the reply will show that it is clearly mentioned therein that three letters by some un-named lover of the appellant were received at the address of the father of the respondent, two of them have been destroyed and third was produced, but was not proved. Though the name of the lover is not named in the letter was received, it was read in the presence of the respondent and the appellant and the appellant had admitted that she was having illicit relation with that man. THE allegations of this nature, there can be no dispute amount to mental cruelty. Thus, even if during the proceedings u/s 125 Cr. P. C. the respondent would have offered that he is willing to maintain the appellant his wife in case she lives with him. All that was required by law was that the offer should have been considered and still an order for maintenance can be made. THE learned Judge, Family Court surprisingly did not take into consideration this aspect of the matter merely on the ground that allegations of cruelty as contained in the application are not proved and arrived at a conclusion that there is no proof of neglect or refusal to maintain the appellant by the respondent and, therefore, dismissed the application u/s 125 Cr. P. C. as far as the appellant is concerned. This approach of the learned Judge to us does not appear to be correct. As said earlier a Hindu wife, moreso pregnant one and moreso one who belongs to poor family having no income of her does not desert her husband who is of better status in the society, is well placed and there must be some reason for her to leave the house of the husband. From the facts on record, we are satisfied that it is a case of refusal or neglect by the respondent to maintain his wife and, therefore, the learned Judge, Family Court was wrong in rejecting the application of the appellant so far as maintenance to her is concerned. The learned counsel for the respondent admits that when the reply was filed, the monthly income of the respondent was Rs. 2,200/- per month and we presume that there must have been increase in emoluments of the respondent. Even if we take the monthly income of the respondent as Rs. 2,200/- per month, the learned Judge, Family Court has awarded maintenance as Rs. 300/- per month to the minor child, we are of the opinion that the respondent should be directed to pay Rs. 500/- per month as maintenance to the appellant from the date of the order of the learned Judge, Family Court, Ajmer. Consequently, we allow this appeal and direct the respondent to pay Rs. 500/- per month to the appellant as maintenance in addition to the maintenance granted to the minor child by the learned Judge, Family Court, Ajmer. The maintenance is allowed from the date of the order of the learned Judge, Family Court, Ajmer, so far as the appellant is concerned. Costs made easy. . ;