Surjit Kaur and ors. vs Tarlochan Singh

S.S. Sodhi, J.

The matter here concerns the payment of maintenance to minor children under Section 125 of the Code of Criminal Procedure (for shot `the Code''). The trial Magistrate fixed maintenance for the children at the rate of Rs. 120/ per month per child making it a total amount of Rs. 600/ per month. In revision, the Additional Sessions Judge, Sangrur by his order dated 30.3.1987 reduced this maintenance to Rs. 450/ per month, that is, at the rate of Rs. 90/ per month per child. This was done taking into account the income of the husband, which was assessed at Rs. 800/ and also taking into account Rs. 200/, which was stated by the wife, to be here earnings. In revision now, Mr. Jasbir Singh, the learned counsel for the wife sought to assail the order of the Additional Sessions Judge on the ground that he has not taken into account the fact that the husband owned land from which he must have been deriving some income. As regards the land owned by the husband, it has come on record that this land was under mortgage with possession with some others. This being so, there is no question of the husband deriving any income from this land. Further, it is stated that the mortgage amount received was utilised by the husband in constructing a residential house at Nander.

There is, no warrant for holding that the Additional Sessions Judge erred in assessing the income of the husband at Rs. 800/ per month. If this is so, no exception can be taken to the award of Rs. 450/ per month as maintenance to the children. The impugned order of the Additional Session Judge, thus, warrants no interference in revision.

An attempt was made by the learned counsel for the wife to suggest that in the meanwhile the husband has sold some portion of his land for Rs. 48,000/. If it is so, it would undoubtly be open to the wife to move the Magistrate for modification of the maintenance order, if it is so warranted by any change in the circumstances.

There is also a petition filed by the husband under Section 482 of the Code seeking to challenge the maintenance awarded against him. This petition is clearly not maintainable under Section 482 of the Code keeping in view of the fact that he had already availed of the remedy available to him under Section 397 of the Code. The bar, as contained in subsection 3 thereof, operates as laid down by the Supreme Court in Amar Nath and others v. State of Haryana and others, AIR 1977 SC 2185, and cannot be circumvented by resort to section 482 of the Code.

In the result, both the petition under Section 482 of the Code filed by the husband, also the revision petitions filed by the wife are hereby dismissed.