MOHAMMAD RAFIQ J. - (1.) PETITIONER seeks to challenge order dated 16.12.2008 of learned Judicial Magistrate 1st Class, Mahuwa, District Dausa passed in Miscellaneous Criminal Application No.216/2004 filed under Section 125 of the Code of Criminal Procedure, and order dated 24.08.2011 of learned Additional Sessions Judge, Bandikui, Camp at Mahuwa passed in Criminal Revision No.31/2011. The first court by aforesaid order has allowed application filed by respondent wife under Section 125 Cr.P.C. and directed petitioner husband to pay monthly maintenance of Rs.2200/- to respondent wife from the date of order. Petition husband challenged that order by filing revision petition. Learned revisional court i.e. Additional Sessions Judge by impugned order upheld the order of learned lower court. Contention of learned counsel for petitioner is that respondent wife has been staying away from petitioner husband without any justification and therefore, according to sub-section (3) of Section 125 Cr.P.C., she would not be entitled for any maintenance. Learned counsel, in support of the argument, cited a judgment of the Supreme Court in Deb Narayan Halder v. Smt. Anushree Halder AIR 2003 SC 3174 and submitted that respondent wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, for protection order but that application was rejected by the same court, which allowed the application under Section 125 of the Cr.P.C. The court by its order dated 01.06.2009 ordered that respondent wife failed to prove a to what effort she made for the maintenance of her children i.e. two sons, for last five and six years, the period for which she stayed away from children. The court further observed that a mother even when she resided away from petitioner husband, would always be willing to meet her children but there is nothing on record to suggest that respondent wife would have ever made any effort during last five and six years to do so. Evidence on record also suggests that children wanted to stay with petitioner father, who has been taking care of them in a particular way. Respondent wife failed to prove as to in what manner petitioner husband subjected her to demand of dowry or beating. Learned counsel therefore argued that same court having held so, could not have directed petitioner husband to pay maintenance of Rs.2200/- per month, to respondent wife. The revisional court has mechanically passed the order without considering the arguments advanced on behalf of petitioner husband and rather summarily rejected the revision petition. It was also argued that the respondent wife lodged first information report against one Bachchu under Section 376 read with Section 511 IPC, and subsequently said Bachchu Singh committed suicide which shows that she is a lady of lose character. This should be taken as sufficient reason why the petitioner husband does not want to take respondent wife to his house and this dis-entitled the respondent wife to any maintenance.
(2.) LEARNED counsel argued that both the children, who were aged 16 and 13 years at the time of recording of their statements, also deposed that their mother was not having a good character and they also proved income of the father. On hearing learned counsel for the petitioner and perusing impugned orders, I am not persuaded to uphold the argument that just because respondent wife lodged an FIR against someone for attempt to commit rape upon her and that person who was accused therein committed suicide, it cannot be deduced from the fact that respondent wife was leading adultery or otherwise a woman of lose character. This hardly supports the petitioner husband to say that he would not be liable to pay maintenance to respondent wife as this by itself does not prove that respondent wife is staying away from husband without any justification. The cited judgment of Supreme Court therefore cannot provide any assistance to petitioner husband.
(3.) THE evidence clearly indicates that what petitioner husband sought to prove was that respondent wife though illiterate but was earning around Rs.3000/- per month by doing the knitting and tailoring work and this is what was said by two children also. The children also stated what their father said that the respondent wife was not a woman of good character and thus learned Magistrate discarded their testimony because children were living with father for last several years and therefore directed the petitioner to pay a sum of Rs.2200/- per month. It is proved that the petitioner husband is serving as a teacher in government school and therefore his income was sufficient. He had been having sufficient means to pay maintenance. Learned court of Magistrate in the order dated 01.06.2009 has, while rejecting application of the respondent wife filed under Section 12 of the Act, 2005, also taken into consideration the fact that the respondent wife was receiving a sum of Rs.1500/- per month as interim maintenance and therefore denied the protection order to respondent wife. It is thus evident that receipt of maintenance by respondent wife in proceedings under Section 125 Cr.P.C. was taken as one of the basis for denying protection order under Section 12 of the Act of 2005.;