Court No. - 48 Case :- APPLICATION U/S 482 No. - 6168 of 2001 Petitioner :- Rajendra Singh Respondent :- State Of U.P. Petitioner Counsel :- R.B. Saxena Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J.
Heard Mr. R.K. Sharma, learned counsel for the applicant, learned AGA for
the State and perused the record. None appeared for O.P. No. 2.
This application u/s 482 Cr.P.C. has been filed for quashing the orders dated
8.1.2001 and 3.5.2002 passed by the courts below. Vide order dated 8.1.2001
passed by IX A.C.J.M. Ghaziabad, in Case No. 226 of 2000 the application
for maintenance u/s 125 Cr.P.C. moved by O.P. No. 2 was allowed and it was
directed that the applicant shall pay a sum of Rs. 900/- per month as
maintenance to O.P. No. 2 from the date of the petition i.e. 3.8.1999. When
the order of the Magistrate was challenged in revision, that revision was
dismissed.
It appears from the record that an application u/s 125 Cr.P.C. was moved by
O.P. No. 2 for getting maintenance for herself and her daughter. It was said by
her that the marriage between the two had taken place on 1.6.1989 in which
sufficient material was given but it could not satisfy the lust of the applicant
and his family members. They were pressing O.P. No. 2 to bring more dowry
and on account of this she was being treated with cruelty by the applicant and
others. Once they gave poison in her meal. When the demand was not fulfilled
the lady was left in wearing clothes at her parent’s house on 22.3.1994 and
since then the husband did not take care and also did not try to bring her back.
The applicant filed written statement in which he admitted that O.P. No. 2 is
his wife. However, other allegations made by O.P. No. 2 were denied.
Before the trial court both the parties led evidence and after perusal of the
same the trial court came to the conclusion that the lady had sufficient cause
to live separately and was neglected by her husband in maintaining her. It was
also held that the husband was able to maintain his wife and the wife was
unable to maintain herself. In view of the findings recorded, the trial court
allowed the application vide impugned order dated 8.1.2001 and granted
maintenance of Rs. 500/- per month to the wife and Rs. 400/- per month to the
daughter. The applicant filed a revision against the order of the Magistrate and
the revisional court dismissed the revision on 3.5.2002 holding that there was
no impropriety or illegality in the judgment passed by the Magistrate.
Mr. Sharma challenged all the findings recorded by the trial court and
affirmed by the revisional court.
From the record it is very much clear that an allegation was made by the wife
that the husband had neglected her and her daughter inspite of having
sufficient means to maintain them. The husband took the plea before the court
that he is ready to take back the wife and the daughter. However, this could
not happen in view of the alleged atrocities committed by the husband upon
the wife. In such view of the matter, it becomes necessary to see as to whether
there was a genuine ground for the wife to live separately from her husband.
In this regard the evidence on the record was that the lady was treated with
cruelty not by her husband but also by his other family members for or in
connection with the demand of dowry and atrocities were committed upon her
to the extent that once the lady was given poison in her meals. In such
circumstances it appears that in case the wife goes to live with her husband,
she may be eliminated by her husband and other family members. Thus, the
wife rightly refused to live with her husband in the circumstances of the case
when there was danger to her life. The finding of the trial court in this regard
that there was sufficient cause for the wife to live separately is liable to be
approved. This finding is also liable to be approved that in this case when
there is sufficient ground for the wife to live separately, it will be presumed
that the husband had neglected her.
The finding of the trial court that the husband was able to maintain his wife is
also approved by the record. The applicant was serving in Border Security
Force, though now he is a retired employee, but he has sufficient income from
pension to provide that much of maintenance, which has been provided by the
trial court. Therefore, this finding of the trial court is liable to be approved
that the husband is able to maintain his family.
So far as this finding is concerned that the lady is able to maintain herself, in
that regard no material was placed before the trial court and therefore, the trial
court rightly concluded that the lady was not able to maintain herself.
The quantum of maintenance awarded by the trial court has not been disputed.
Therefore, in view of the above, I do feel that the judgment of the trial court
as well as the revisional court do not call for any interference in this
application u/s 482 Cr.P.C.
The petition u/s 482 Cr.P.C. is dismissed.
As the husband has now retired from service, it is, hereby directed that the
maintenance allowance as directed by the courts below shall be deducted from
the pension of the applicant and shall be credited in the account of O.P. No. 2.
This order is being given as the learned counsel for the applicant agrees to
make payment of the maintenance allowance from the pension of the
applicant.
The department shall be free to make payment of the pension after deducting
the maintenance allowance.
Order Date :- 5.8.2010
Pcl