Vijai Kumar Agrawal vs Anjali alias Rekha Agrawal

S.C. Jain, J.—This revision petition is directed against judgment and order dated 26.4.1994 passed by Sri. S.C. Tiwari, Judge, Family Court, Kanpur Nagar in Case No. 152 of 1992 (Smt. Anjali alias Rekha v. Vijai Kumar Agrawal) awarding a maintenace of Rs. 300 per month to the wife, Smt. Anjali alias Rekha.

Smt. Anjali alias Rekha Agrawal, being a legally wedded wife of the applicant, Vijai Kumar Agrawal, the applicant herein, filed a petition u/s 125, Code of Criminal Procedure for grant of maintenance alleging therein that she has no independent source of income for her maintenance and she has been neglected by the husband and she is not being maintained by him. It has also been alleged that from the first date of marriage she found her husband to be impotent and was not capable of performing her marital obligations. That application was filed before the Judge, Family Court, Kanpur Nagar.

After appreciating the submissions made by the parties learned Counsel and on the basis of the materials available on record the Judge, Family Court, Kanpur Nagar awarded Rs. 300 per month as maintenance to the wife by his order dated 26.4.1994.

Feeling aggrieved, this revision petition has been filed by the husband before this Court.

The first submission made by the learned Counsel for the applicant is that the Judge, Family Court, Kanpur Nagar had no jurisdiction to entertain that petition to award maintenance. The residence of the wife being a student at Kanpur was only temporary and, therefore, this fact could not give jurisdiction to the Family Court at Kanpur Nagar.

The second submission made by the learned Counsel for the applicant is that the factum of impotency has not yet been established inasmuch as a petition for nullity of marriage on the ground of impotency filed by the wife is still pending for disposal and unless and until it is so held, he cannot be termed as impotent. According to the learned Counsel for the applicant though he has not opposed passing of the decree of nullity in the petition filed by the wife but the factum of impotency has not been admitted by him.

The third submission made by the learned Counsel for the applicant is that the amount of maintenance is excessive and that it should not be allowed from the date of application.

As far as the point of jurisdiction is concerned, it is not disputed that the petition can be filed at a place where either the wife or the husband has been residing or last resided. In this case there is no dispute about the fact that Smt. Anjali Agrawal, the wife, was living at Kanpur at the time when this petition was filed by her, her stay at Kanpur for M.A. course cannot be said to be a casual visit. The jurisdiction assumed by the Family Court, Kanpur Nagar, therefore, cannot be said to be illegal in the present circumstances of the case.

Regarding the other contention that she is not justified in living separate as the allegation of impotency has not yet been proved, I may say that it has also no force. It has been laid down by this Court in the case of ''Ashok Kumar Singh v. VIth Addl. Sessions Judge'' reported in 1991 UP CR 359, that a wife is justified in living separate from her husband if she finds that her husband is impotent. She can claim maintenance by living separate in such circumstances. It is for the competent Court before whom the petition for nullity of marriage on the ground of impotency is pending to declare the husband as impotent, but if the wife finds husband as impotent she is justified in living separate on that account. In this case the husband has not contested the petition for nullity of marriage filed by the wife on the ground of impotency and has stated that he has no objection if the decree is passed, though he has denied the factum of impotency. In such circumstances living separate cannot be said to be unjustified. The wife can claim maintenance by living separate on this account.

Regarding the quantum of maintenance from the date of application, the learned Judge, Family Court came to the conclusion on the basis of affidavit that income of the husband was at that time Rs. 1000 per month and in these circumstances a sum of Rs. 300 was awarded as maintenance. The revisional Court cannot re-appreciate the evidence on this point which I find that the Judge, Family Court has not committed any error in arriving at this conclusion.

Regarding the date of grant of maintenance u/s 125, Code of Criminal Procedure it can be granted either from the date of application or from the date of order. In a recent judgment of this Court in Criminal Revision No. 1362 of 1994. (Basant Lal v. State of U.P. and Anr.), given by Hon''ble Mr. Justice K.L. Sharma on 8.2.1995 it has been held that as a general rule wife who has got no independent source of income and has been neglected by her husband, she becomes entitled to get maintenance from the date when she applied for the same.

In view of the above discussions, I find no merit in this revision petition and I also find no illegality or infirmity in the order passed by the Court below. I, therefore, decline to interfere in this revision petition and the same is hereby dismissed.