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Judgment
Ram Autar Singh, J.—This revision has been filed against the judgment and order dated 25.6.2008 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 13, Deoria in Case No. 240 of 2006 (Smt. Poonam Jaiswal @ Meenu and Anr. v. Ashutosh Kumar Jaiswal), wherein the application moved u/s 125 Code of Criminal Procedure for maintenance allowance has been partly allowed and sum of Rs. 500/- per month as maintenance allowance has been awarded to the revisionist No. 2 Adarsh Jaiswal with effect from the date of order.
It transpires from the record that the application u/s 125 Code of Criminal Procedure was moved by the revisionists for their maintenance allowance against Respondent No. 2 Ashutosh Kumar Jaiswal with this allegation that the marriage of revisionist No. 1 with Respondent No. 2 took place on 23.2.1999 and out of their wedlock revisionist No. 2 Adarsh Jaiswal was born and thereafter the Respondent No. 2 made demand of Rs. 1 lac as dowry and on account of no fulfillment of demand Respondent No. 2 started to deal revisionist No. 1 with cruelty and ultimately he expelled her from his house on 15.8.2001, while she was pregnant and thereafter she came to the house of her father in District Deoria. It was further mentioned in the application that her husband was drawing Rs. 8000/- as his salary by doing job in postal department and thus he deliberately neglected to maintain her.
The Respondent No. 2 denying allegations in his written statement admitted that he was married with the revisionist No. 1 on the said date but he never expelled her from his house rather she left his house with her own consent and she started to live separately without any sufficient cause, while the Respondent No. 2 filed petition No. 931 of 2001 for restitution of conjugal rights in the court of Civil Judge (S.D.), Basti, but she did not agree to live with him. The learned trial court on the basis of evidence, record and circumstances dismissed the claim of revisionist No. 1 but allowed maintenance allowance for revisionist No. 2, aggrieved by which, the revisionist filed this revision.
The learned Counsel for the revisionists has contended that the learned trial court has rejected the application u/s 125 Code of Criminal Procedure for claim of revisionist No. 1 on the ground that in proceedings u/s 9 of the Hindu Marriage Act pending in District Basti, she has been getting Rs. 1000/- per month as interim maintenance allowance. The maintenance allowance awarded to revisionist No. 2 is quite insufficient and he cannot maintain himself out of this meagre amount.
It is further contended that revisionist No. 1 has no sufficient amount to maintain herself, but the trial court has come to the conclusion that she has been living separately without any sufficient cause. The prayer of revisionist No. 1 made u/s 125 Code of Criminal Procedure cannot be refused on the ground that she has been getting Rs. 1000/- per month in petition u/s 9 of the Hindu Marriage Act which are different proceedings and on termination of those proceedings her maintenance allowance will come to an end.
The learned Counsel for the Respondent has cited the judgment of the trial court in which it has been observed that u/s 125 Code of Criminal Procedure the wife will not be entitled to get maintenance allowance, if she refuses to live with her husband without any sufficient cause. It has been further observed that the revisionist No. 1 in her cross-examination has categorically stated that she will not be willing to live with her husband if he promises to keep her with dignity in a separate house. The learned trial court has recorded its finding that the revisionist No. 1 has no reason to live separately from Respondent No. 2 without any sufficient cause and thus she is not entitled to get maintenance allowance u/s 125 Code of Criminal Procedure from Respondent No. 2. It has also been observed that Respondent No. 2 has filed petition u/s 9 of the Hindu Marriage Act for restitution of conjugal rights which is still pending and the revisionist No. 1 is not willing to live with her husband.
The findings recorded by the trial court cannot be said to be perverse, in view of above facts, evidence and circumstances of the case. Consequently, this revision does not deserve to be allowed for maintenance of revisionist No. 1, however, maintenance allowance for revisionist No. 2 cannot be said to be sufficient, in view of present costly living and education. In view of the income of Respondent No. 2, it would be just and proper to award Rs. 2000/- per month as maintenance to revisionist No. 2.
Consequently, this revision is partly allowed and maintenance allowance for revisionist No. 2 awarded by the trial court is enhanced from Rs. 500/- to Rs. 2000/- per month with effect from the date of application.