SINDHU P. A. Vs. VIJI P. K.

JUDGEMENT

(1.) The petitioner in this revision petition challenges the rejection of the claim for maintenance of the first claimant / petitioner / wife and the amount ordered to the second claimant / child under S.125 CrPC.

(2.) Marriage and paternity is admitted. Admittedly the relationship / marriage stands terminated by a decree for divorce dated 31/12/2004. At the time when the petition was filed, it appears that the decree for divorce had not been passed. There was an earlier decree for restitution of conjugal rights. That decree has become final. It was not challenged. The wife was residing separately without complying with the decree for restitution of conjugal rights. It is at that stage, the claim petition was filed.

(3.) In the course of the proceedings, the decree for divorce was passed on 31/12/2004. The respondent / husband re-married and in such re-marriage a child was born for the respondent / husband. The husband resisted the claim for maintenance on the primary ground that the wife was guilty of contumacious non compliance with the decree for restitution of conjugal rights. It was however contended that the wife was not unable to maintain herself. She was a nurse by qualification. She had worked as a nurse prior to and subsequent to marriage. In these circumstances, she cannot be held to be a woman unable to maintain herself, it was contended. There was an assertion that the respondent / husband is employed as a radio mechanic in the pleadings. Assertions and counter assertions made about the income of the respondent; but in evidence, the wife asserted that his income is Rs.10,000/- per mensum. There is no specific challenge against that assertion in the course of cross-examination.