Mehboob Ali vs Smt. Shammi and Others

B.K. Rathi, J.—This is a revision u/s 397/401, Cr.P.C. against the order, dated 8.6.1998 passed by X Ith Additional Sessions Judge, Muzaffarnagar in Criminal Revision No. 288 of 1997.

I have heard Sri K. K. Srivastava, learned Counsel for the applicant and Sri V. Singh, learned Counsel for the opposite party No. 1 and have considered the evidence.

The facts of the case are as follows.

The opposite party No. 1 moved an application u/s 125, Cr.P.C. for her maintenance and that of her three minor daughters against the Petitioner. That application was rejected by learned Magistrate by an order, dated 26.7.1997, on the ground that the opposite party No. 1 is not ready to live with the Petitioner. Against that order opposite party No. 1, filed Criminal Revision No. 288 of 1997, which has been allowed by order, dated 8.6.1998 and maintenance of Rs. 400 has been awarded to the opposite party No. 1 and the maintenance @ Rs. 150 per month has been awarded to each of the three daughters of the opposite party No. 1 by the impugned order. Aggrieved by it, the present petition has been preferred.

It is contended that there is a decree of restitution of conjugal rights in the suit filed by the revisionist against opposite party No. 1. She has not complied the decree. That, therefore, she is not willing to live with the Petitioner. That, therefore, the learned Magistrate rejected the application for the reason that there is no ground to award the maintenance. As against this the contention of the opposite party No. 1 is that, she has given birth to the three daughters and therefore, she was turned out of the house for the reason that she is giving birth to female children only. It is further contended that the Petitioner has also remarried.

As regards the maintenance to the three daughters is concerned, they are admittedly living with opposite party No. 1. There is no reason to interfere in the order. The maintenance has been awarded @ Rs. 150 per month only to each of them. The Petitioner never applied for their custody nor offered to help them. It is the duty of the Petitioner to maintain them. Therefore, the maintenance was rightly awarded to them.

Now coming to the award of the maintenance to the opposite party No. 1. The impugned order appears to be just and proper. The decree for restitution of conjugal rights against opposite party No. 1 is ex-parte. The learned Additional Sessions Judge in her judgment has mentioned that it is admitted that the Petitioner has contracted a second marriage. If it is so, it in itself sufficient ground for the opposite party No. 1 to refuse to live with the Petitioner.

No cogent reason has been given by the Petitioner as to why the opposite party No. 1 does not want to live with him. The contention of the opposite party No. 1 is reasonable that she was turned out of the house because she gave birth to the female children only. She alleged that she was treated with cruelty.

In these circumstances, I do not find any illegality in the impugned order awarding the maintenance to the opposite party No. 1 @ Rs. 400 per month as well.

The petition is without any merit and it is therefore, dismissed. The stay order, dated 31.8.1998 stands vacated.