Revision dismissed against Family Court maintenance order of Rs. 3,000 for wife and Rs. 1,000 for son; no illegality found despite husband's alleged income and pending restitution petition.
Maintenance of Rs. 3,000 p.m. for wife and Rs. 1,000 p.m. for son maintained; revision dismissed.
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Court No. - 55
Case :- CRIMINAL REVISION No. - 1654 of 2007
Revisionist :- Sachin Malhotra Opposite Party :- Smt. Poonam And Another Counsel for Revisionist :- Arun Srivastava Counsel for Opposite Party :- A.G.A.,R.K.Khanna
Hon'ble Pradeep Kumar Srivastava,J.
None present in the revised list on behalf of revisionist. Shri Ajay Kumar Singh, Advocate holding brief of R.K.Khanna, learned counsel for opposite party no. 1 and 2 is present.
Lower court record has already been received.
This revision has been filed against the judgement and order dated 09.05.2007 passed by Principal Family Court, Moradabad in case crime no. 242 of 2003 under Section 125 Cr.P.C (Poonam Vs. Sachin Malhotra) by which the learned court below while allowing the application of opposite parties awarded maintenance of Rs. 3,000/- p.m in favour of wife and Rs. 1,000/- p.m in favour of son from the date of filing of the application under Section 125 Cr.P.C.
It appears that on 27.07.2007, this Court passed a stay order on the condition that the revisionist shall pay all the arrear amount till date as per the judgement of the trial court within a period of two months and shall continue to pay the same by 7th of each month. It was also directed that the instalment shall be paid in this month itself.
From the perusal of file, it appears that the revisionist has not filed receipt or any supplementary affidavit showing
that he has complied with the order of this Court. This alone is a good ground for dismissal of this revision.
On merits, it appears that an application under Section 125 Cr.P.C was filed by the wife and son claiming Rs. 5,000/p.m for the son and Rs. 5,000/- for the wife, a total amount of Rs. 10,000/- p.m as maintenance.
The record and the impugned judgement reveals that the marriage between the parties and the birth of the son out of their wedlock has been an admitted fact. The wife had alleged that the husband has deserted her and her son and she is living with her parents in the parental house and there is no source of income and is totally depended on her parents. On the other hand she had alleged that the husband has three Ambassador cars and the cars are attached with the Government departments on a monthly payment of Rs. 11,151/- p.m and as such he is earning Rs. 33,453/- and he has some more income by way of commission. The husband has also admitted this fact but has stated that he had taken loan for purchase of one Ambassador car only and he is running the same as taxi and whatever income he gets, the instalment of loan is also paid from it. He has further stated that he has already filed a petition under Section 9 of the Hindu Marriage Act and he wants to live with his wife and son with all cordiality. He has further stated that the wife herself left the matrimonial home, she always insisted for doing some business in Delhi as she is enough qualified and she has done M.A in English whereas he is not much educated. Her brother-in-law (jijaji) lives in Delhi and he has enough interference in their matrimonial life.
On the basis of evidence on record, the learned Family Court found that the marriage between the two and the birth of son out of their wedlock was fully established as per pleadings of the parties. He also found that the wife is living along with her son with her parents. She has no source of income for livelihood. He has also concluded that the petition of Restitution Conjugal Rights under Section 9 of the Hindu Marriage Act, which was decided ex-parte against which, an application under Or. 9 Rule 13 C.P.C was filed and the Court rejected the application for delay condonation against which proceeding is pending in the High Court of Uttrakhand and as such the decision in the petition under Section 9 of the Hindu Marriage Act has not assumed finality. More over, the learned trial court also took the view that the proceeding under Section 9 of Hindu Marriage Act will not be able to prevent the claim of maintenance by the wife under Section 125 Cr.P.C, enacted for the purpose of preventing destitution. The learned trial court also found that the husband never provided any maintenance to the wife and son and she was living with her parents. On evidence, it was found that the husband created a situation for the wife by his cruelty and harassment that she was forced to leave the matrimonial home and therefore, the learned trial court concluded that the wife was living separately for reasonable cause. Finding sufficient financial resource with the husband, the learned trial court allowed the application under Section 125 Cr.P.C and the said amount of maintenance was awarded by the impugned judgement. Rs. 3,000/- p.m for the wife and Rs. 1,000/- p.m for the growing child is in no
where in higher side.
In view of above discussion, I find no material irregularity or illegality or jurisdictional error in the impugned judgement. The revision lacks merit, hence same is dismissed.
Stay order, if any, shall stand vacated.
Order Date :- 5.12.2019 PS
1 issue framed by the court
Whether the revision has any merit against the maintenance order passed in favour of the wife and son under Section 125 Cr.P.C.
2 provisions across 2 enactments
Sachin Malhotra
Smt. Poonam
Son of Poonam
Pradeep Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
