Prem Shanker vs State of U.P.

Ram Surat Ram (Maurya), J.—Heard Sri Birendra Pandey for the petitioner.

The petition has been filed for setting aside the orders of Judicial Magistrate dated 9.7.2010 and 2.11.2013 and order of Additional Sessions Judge dated 22.2.2016.

By order dated 9.7.2010 the Magistrate has awarded maintenance of Rs. 2,000/-per month to the wife. The petitioner appeared before the Magistrate and filed an application for recall of the order dated 9.7.2010. He took the plea that respondent is doing service as Anganwadi Karvakartri, therefore, she is not unable to maintain herself and the case filed by her for maintenance is not maintainable. On the application of the petitioner. Judicial Magistrate by order dated 2.11.2013 modified his earlier order and directed the petitioner to pay Rs. 5,000/- as cost of litigation and Rs. 750/-per month as interim maintenance to the wife. He was permitted to tile objection in the application for maintenance. The petitioner challenged the aforesaid order in revision which has been dismissed by the Additional Sessions Judge by order dated 22.2.2015. Hence, this petition has been tiled.

The Counsel for the petitioner submits that respondent is in service as Anganwadi Karyakartri, therefore, she is not unable to maintain herself and the order of interim maintenance is illegal. He has also filed evidence which shows that the respondent is working as Anganwadi Karyakartri issued under Right to Information Act.

From the facts stated by the petitioner, it is clear that application for maintenance has been filed under Section 125, Cr.P.C. The petitioner now contesting the case on the ground that wife is not unable to maintain herself as she is in service. Thus evidence tiled by the petitioner will betaken into account only after the parties are given opportunity of evidence. The Magistrate is fully competent to award interim maintenance as well as costs of litigation to wife. Therefore, there is no jurisdictional error in the order. The petition has no merit and it is dismissed.

However, the petitioner is directed to pay amount of maintenance for the month of April, 2016 and cost of litigation within fifteen days to the wife. In case she does not accept the same he may deposit the bank draft before the Magistrate and remaining arrears of maintenance from 2.11.2013 upto March, 2016, may be deposited within a period of four months from today through bank draft before the Magistrate.