SARASWATHI Vs. SIVASWAMI

JUDGEMENT

(1.) The revision petitioner has been filed by the wife against the order of the trial Court disallowing maintenance for her. The petitioner has filed a petition under section 125(1) of the Criminal Procedure Code for maintenance for herself and for her daughter aged about 2 years on the ground that the husband had deserted her and married another wife. The respondent husband resisted the petition on the ground that he has not taken a second wife and that the petitioner is staying away from him for her own reasons. The learned Magistrate found, on evidence that the petitioner wife is possessed of 5 acres of dry land, which she got under a settlement deed from her father and therefore held that she is able to maintain herself. Consequently, the lower Court directed the respondent to pay maintenance for the daughter alone at the rate of Rs. 150 per mensem. The wife is aggrieved by the said order and she has come on revision.

(2.) Learned counsel for the petitioner would argue that the very approach of the lower Court while disallowing the maintenance for the wife is erroneous and reliance is placed on a ruling of the Supreme Court reported in Bhagwan Duti v. Kamla Devi1. The learned counsel argued that no doubt the personal income of the wife may also be taken into consideration in fixing the quantum of maintenance; but the fact that the wife is possessed of some properties is not a ground for altogether refusing maintenance to her. This contention is acceptable and, as pointed out by the Supreme Court, the personal income of the wife will be taken into consideration in fixing 1. AIR 1975 SC 83. the quantum of maintenance; but then, the standard of living of the parties, their status, their background and their outlook in life have got to be considered while fixing the maintenance. In other words, the quantum of maintenance must be commensurate with the standard of living which should be neither luxurious nor penurious. Bearing these principles in mind, let us look into the evidence in some detail.

(3.) The petitioner has examined herself as P.W. 1 and also a respectable man of the village as P.W. 2. The petitioner as P.W. 1 admitted that her father had settled 5 acres of dry land on her, which, according to her, fetch an annual income of Rs. 300. She further stated that the respondent husband is the only son of his parents and is possessed of large items of immovable properties. In particular, she would state that her husband .has 10 acres of garden land at Madhukarai and 16 acres of garden land at Nevakarai and that he also owns 7 or 8 shops which had been leased out to tenants for a minimum rent of Rs. 500 per mensem. She then stated that her husband is also running a daily market. According to her, there are motor pump sets in the fields and that the annual income for the respondent would be about a lakh of rupees. She therefore claimed a maintenance for herself at the rate of Rs. 350 per mensem.