ORDER
Rakesh Saksena, J.
1. Petitioner/wife has filed this revision against the order dated 17-2-2004 passed in Criminal Case No. 115 of 2003 by the Additional Sessions Judge, Khurai, District – Sagar, whereby the order dated 3-7-2003 passed by Judicial Magistrate First Class, Bina in M.J.C. No. 86 of 2001 was modified by reducing the quantum of maintenance awarded to her.
2. In short, the case of petitioner is that she was married to respondent on 8-2-1992. After the marriage she went to her husband’s house 3-4 times and duly performed her responsibilities, but he started treating her with cruelty and harassing her by not providing food and clothes and making demand of refrigerator, vehicle and five lacs rupees. Ultimately, she was compelled to leave the house in the year 1998. Since then she was living at her mother’s house. She had no sufficient source of income. According to her, the respondent was working as Office Superintendent in the Railway Training School, Bhusawal, and was earning about Rs. 8-10 thousand per month and was also running a dairy having 60 she-buffaloes. On the aforesaid grounds, the petitioner moved an application for maintenance claiming Rs. 5,000/- per month from the respondent.
3. In reply, the respondent (husband) pleaded that after the marriage petitioner lived with him only on 3-4 occasions. Initially, her behaviour was good but after some time she started misbehaving and pressurizing him for seeking transfer to Bina. On his not yielding to her demand she got annoyed and started misbehaving with him and other family members and ultimately left his house taking away all the ornaments etc. to Bina. Despite repeated efforts, petitioner did not come back to his house and tiled application demanding maintenance. According to him, petitioner is an educated woman. She earns Rs. 2,000/- per month from tuitions and owns about 12 acres of irrigated land. She has also a big house at Bina, whereas he is a clerk in the railway department and is getting only Rs. 3,472/- per month after all deductions. He has also to look after his big family.
4. After taking into consideration the pleadings of both the parties and the evidence and material on record, Trial Court held petitioner entitled to receive maintenance from respondent at the rate of Rs. 2,000/- per month.
5. On revision preferred by the respondent learned Addl. Sessions Judge though held the petitioner entitled for getting maintenance, but reduced the Quantum of maintenance from Rs. 2,000/- per month to Rs. 500/- per month, aggrieved whereby the petitioner has preferred this revision petition for enhancement of the amount of maintenance.
6. Learned Counsel for the petitioner submits that the learned Sessions Judge erred in reducing the amount of maintenance awarded by the learned Magistrate after due consideration of the evidence and material on record.
7. Perusal of the impugned order passed by the learned Addl. Sessions Judge reveals that he reduced the quantum of maintenance on the ground that the respondent was a clerk in the railway department who after all the deductions in the pay was receiving in hand only Rs. 3,472/- per month and that it was on record that the petitioner was an educated woman, therefore, the possibility of her earning by private tuitions could not be ruled out and that the petitioner, in her cross-examination, had admitted that she had about 8-10 acres of agricultural land. Though it was stated by her that she had gifted her agricultural land to her brother, but no such gift deed was produced before the Court. It was admitted by her that she was earning about 5-6 thousand rupees per year from her land and that she was living in a house which comprised of 8-10 rooms, though it was denied by her that some part of the house was given on rent.
8. Learned Additional Sessions Judge held that the amount of maintenance to wife should only be a subsistence allowance and not a provision for luxurious life which may dissuade her from returning back to husband’s house.
9. From perusal of the evidence of respondent/husband it appears that the respondent was serving in the grade of Rs. 4500-7000. In the year 2003 his basic pay was Rs. 4850/- and he was getting 52% dearness allowance on it. It also appears that his father was also a railway employee who after retirement was getting pension of Rs. 1,800/- per month. In Para 18 of his statement the respondent stated that he was not residing in railway quarters, he was living in his father’s house. His father had about 10 acres of land in Village Karonda.
10. Though, from the evidence of the petitioner it appears that she owns some agricultural land and earns about 5-6 thousand of rupees per month from it, but this itself does not indicate that this amount is sufficient for her proper living. Merely by the fact that the petitioner is an educated woman, it cannot be presumed that she was earning by tuitions etc.
11. On due consideration of the facts and circumstances of the case and the material on record I am of the opinion that the impugned order directing reduction of the maintenance allowance from Rs. 2,000/- per month to Rs. 500/-per month deserves to be modified. Since the amount for maintenance should be awarded keeping in mind the status of the family and the needs of the wife, it must be a proper amount. The status of wife is to be judged from the status of her husband and not from her maternal relations. The rate of allowance cannot be fixed on the hypothetical basis i.e., capacity to earn money. Capacity to earn money may be taken into consideration in coming to a conclusion with regard to the means of the husband. In the present case, it is on record that the petitioner is living in her own house and owns agricultural land also. In such circumstances, though the amount of maintenance allowance deserves to be enhanced, but not too much. In my opinion, the rate of allowance deserves to be enhanced to Rs. 900/- per month.
12. Accordingly, this revision is partly allowed. The impugned order is modified. The respondent shall pay Rs. 900/- per month to the petitioner instead of Rs. 500/- per month.