HARISH CHANDRA MISHRA, J. - (1.) THIS application has been filed by the petitioner challenging the order dated 4.6.2010 passed by the learned Principal Judge, Family Court, Lohardaga, in Maintenance case no.13 of 2005, whereby the court below has directed the petitioner to make the payment of Rs.4,000/ - as maintenance to his deserted wife, who is opposite party No.2 in this case. The Court below has also directed the petitioner to make payment of Rs.4,000/ - as maintenance for the minor son of the petitioner living with Opposite Party No.2. At the very outset, it may be stated that the learned counsel for the petitioner has confined the challenge of the impugned order only so far as it relates to the payment of maintenance to the opposite party No.2 and has submitted that he is not challenging the order whereby, the petitioner was directed to make payment of Rs.4,000/ - for maintenance of his minor child.
(2.) IT appears that the opposite party No. 2, Smt.Nandita Sahu had filed an application under Section 125 Cr.P.C against the petitioner claiming to be the legally wedded wife of the petitioner and alleging the cruelty and torture due to which she was driven away from the matrimonial home along -with her minor son. It is stated that the petitioner was working as an Engineer in ONGC and he was getting salary of more than Rs.40,000/ -. It was also contended that the petitioner had also an income of more than Rs.20,000/ - per month from the house property and accordingly, the Opposite Party No.2 had claimed maintenance of Rs.17,000/ - per month for herself and Rs.8,000/ - per month for her minor son from the petitioner. It appears from the impugned order that the marriage between the parties is admitted and it is also admitted that both the parties are living separately. It is also the admitted fact that the petitioner was working as an Engineer in ONGC, but the claim of the petitioner was that he had resigned from his service and he had no income and as such, he was not able to maintain his wife. The petitioner had also claimed that his wife had an earning from 'Sarv Sikhsa Abhiyan' and as such, she was able to maintain herself. It also appears that the evidences were adduced by both the parties in the Court below and on the basis of the evidence of the parties, the Court below came to the conclusion that at the time of filing of the maintenance case, the petitioner was an Engineer under the job of ONGC, the most reputed nationalized company in India and accordingly, in comparison with the opposite party (petitioner herein), the economical status of the applicant (Opposite Party No.2 herein), even though she is working in 'Sarv Siksha Ahiyan' cannot be held to be substantial one. The Court below also came to the conclusion that even though the petitioner contended that he had left the service of ONGC and presently, he is an unemployed person, but no document was brought on record to show that he had resigned from ONGC and accordingly, it can safely be said that the petitioner had taken the plea of being unemployed, only to avoid to give maintenance to his wife and child. The Court below also held that it cannot be considered that the petitioner who was serving in ONGC was living as an unemployed person. Accordingly, the Court below directed the petitioner to make the payment of maintenance in favour of his wife @ Rs.4,000/ - per month. It also appears that the income of Rs. 40,000/ - per month of the petitioner, while he was in service of ONGC, is an admitted fact in the evidence of the petitioner himself.
(3.) LEARNED counsel for the petitioner has submitted that the order passed by the Court below, so far as it directs the petitioner to make the payment to his wife is absolutely illegal, inasmuch as, from the impugned order, it would appear that even the applicant wife had admitted in the Court below that the petitioner had left the service of the ONGC, but she has also alleged that the petitioner had joined a Multi National Company, for which, no proof was brought on record. Learned counsel for the petitioner further submitted that Section 125 of the Cr.P.C prescribes that if any person having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, then only the liability of maintaining the wife arises. It has been submitted that in the present case, since the petitioner had left the service of ONGC the petitioner is not having sufficient means and the Opposite Party no.2, wife who is also working in 'Sarv Sikha Abhiyan' has sufficient means to maintain herself and accordingly, the impugned order could not have been passed by the Court below directing the petitioner to make payment of Rs.4,000/ - per month as maintenance to the opposite party wife. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law and is fit to be set aside.;