Saleem vs State of U.P. and Others

Ram Autar Singh, J.—This revision has been filed against the judgment and order dated 15.4.2008 passed by Principal Judge, Family Court, Meerut, in Case No. 68 of 2005 (Smt. Rahnuma and Ors. v. Saleem), wherein an application u/s 125 Code of Criminal Procedure has been partly allowed and the revisionist has been directed to pay Rs. 25,000/- as expenses of litigation along with interim maintenance and Rs. 1500/- per month as maintenance allowance as well as Rs. 750/- per month each as maintenance allowance to Sadan till his age of maturity and Km. Anam till her marriage with effect from the date of order.

I have heard Shri Saghir Ahmad, learned Counsel for the revisionist and learned A.G.A. for Respondent No. 1 and perused the record. None has appeared on behalf of Respondents No. 2 to 5 to oppose this revision.

The learned Counsel for the revisionist has contended that the Respondent No. 2 has completely failed to either adduce any evidence or to prove it that the revisionist has any source of earning. Even then the learned court below in hyper technical manner has presumed the shop of general merchant of the revisionist''s son as a shop of the revisionist only in order to pass such type of impugned order. The revisionist has nothing to do with the shop run by his son. The Respondent No. 2 has been earning sufficient money to maintain herself and her children. Moreover she has been depriving the revisionist of his valuable matrimonial rights. The court below should have made best effort to restore their matrimonial rights in view of Section 9 of the Family Courts Act, but no finding has been recorded to this effect that any effort for restitution of their rights has been made. It is further submitted that from perusal of the judgment and order in question it has been observed that both the parties are ready to live together, but the Respondent No. 2 wants to live with the revisionist subject to a condition that the revisionist must execute registered deed in respect of his half portion of house, while such condition itself is not sufficient cause in order to live separately or get maintenance and thus Rs. 25,000/- granted a lumpsum amount as expenses of the case and interim maintenance as well as Rs. 1500/-per month is excessive and penal and liable to be set aside.

The parties have admitted their marriage which took place about 15 years before filing the said application u/s 125 Code of Criminal Procedure and this was their second marriage, out of which Saruk, Imran, Sadab and Km. Anam were born. The Respondent No. 2 has been living separately from her husband in view of the fact that he has dealt her with cruelty and she has ultimately refused to live with him on 31.1.2005.

The learned court below has held that the revisionist also filed petition No. 123 of 2005 for restitution of conjugal rights in order to defeat the rights of Respondent No. 2 for maintenance allowance as she has filed petition No. 68 of 2005 for maintenance allowance u/s 125 Code of Criminal Procedure The court below has also held that the Respondent No. 2 has not been living separately from her husband without any sufficient cause, while the revisionist has created such circumstances under which she has been living separately from her husband.

In view of the evidence on record and circumstances of the case, it has not been found proper to allow the petition for restitution of conjugal rights. Moreover, the revisionist has been running his ''partune'' shop through his son Islam. No evidence has been found to establish that the revisionist has been plying any rickshaw and thus the court below has rightly fixed the income of the revisionist as Rs. 10,000/- per month on the basis of evidence on record and partly allowed the petition No. 68 of 2005 directing the revisionist to pay lumpsum amount and maintenance allowance as provided in the judgment and simultaneously petition No. 123 of 2005 has been dismissed. The findings recorded by the court below on facts cannot be said to be perverse.

The Respondent No. 2 has sufficient cause to live separately from her husband because seven children of revisionist born out of his earlier wives are also living in the same house comprising of only four rooms. It has also been proved from the evidence on record that the revisionist has not made his sincere effort to keep his wife and children with him except to file a petition for restitution of conjugal rights and the same has also been filed by him after his wife and children filed their applications for maintenance u/s 125 of Code of Criminal Procedure ., with sole intention to defeat their claim for maintenance. There is no evidence on record to prove that the Respondent No. 2 has any source of her income. No evidence or material has been produced in order to disprove the findings of facts. The revisionist has sufficient income by way of running a shop and thus he is capable of making payment of above amount as directed by the trial court. No sufficient evidence has been found on record to prove that the findings recorded by the trial court are perverse.

Consequently, this revision being devoid of merits is dismissed.