Sikandar vs Kamlesh

T.H.B. Chalapathi, J.

This revision is filed against the orders of the Addl. Sessions Judge, Faridabad in Cril. Revision No. 74 of 1994, dated October 8, 1994.

The respondent is the wife of the petitioner. The respondentwife filed an application under Section 125, Cr.P.C. before the SubDivisional Judicial Magistrate, Palwal, for awarding maintenance. The said application was dismissed by the learned Magistrate holding that there was no refusal or neglect on the part of the husband to maintain his wife. Aggrieved by the same, the respondent preferred Criminal Revision No. 74 of 1994 in the Court of the learned Addl. Sessions Judge, Faridabad. The learned Addl. Sessions Judge by his order dated October 8, 1994, allowed the application of the respondent for maintenance and granted a sum of Rs. 500/ per month.

The learned counsel for the petitioner has contended that there is a clear finding of the learned Magistrate that there is no refusal or neglect on the part of the husband to maintain his wife and accordingly dismissed the same. But the learned Addl. Sessions Judge has not given any finding in regard to the same. Therefore, the order of the learned Addl. Sessions Judge is vitiated and is liable to be set aside.

I have gone through the order of the learned Addl. Sessions Judge carefully. The learned Addl. Sessions Judge has not given any finding in regard to refusal or neglect on the part of the petitionerhusband to maintain his wife. Under section 125, Cr.P.C. a husband can be ordered to pay maintenance if the having sufficient means, neglects or refuses to maintain his wife. Therefore, it is necessary for the learned Addl. Sessions Judge to give a finding whether the husband refused or neglected to maintain his wife. Without recording such a finding, it is not fair for the learned Addl. Sessions Judge to award maintenance. The learned Magistrate has categorically given a finding that there was no refusal or neglect on the part of the husband to maintain his wife but the learned Addl. Sessions Judge has not gone into this aspect of the matter. Therefore, I am of the opinion that the order of the learned Addl. Sessions Judge is liable to be set aside, and remit the matter to the learned Addl. Sessions Judge, Faridabad to give a finding on that aspect of the matter and decide the revision petition afresh in accordance with law. The revision petition is accordingly allowed and the matter is remitted to the learned Addl. Sessions Judge, Faridabad, for disposal in accordnace with law and parties are directed to appear before the learned Addl. Sessions Judge, Faridabad on 20.3.1995. Copy of this order may be given Dasti.