NIRMALA DEVI Vs. ARJUN

JUDGEMENT

(1.) THIS application under section 482 CrPC arises out of maintenance proceedings instituted by the applicant against the opposite parties under section 125 of the Code of Criminal Procedure. The applicant claimed to be the wedded wife of Arjun opposite party no. 1 who is the son of Baldeo opposite party no. 2. It was alleged that the opposite parties after the marriage started maltreating her and she was also beaten on occasions and her ornaments and property retained and ultimately she was turned out and sent to her father's place. They were not prepared to keep the applicant or maintain her and when a notice was given for providing maintenance a false reply was given. It was also alleged that her husband opposite party no. 1 was earning about Rs. 500/- per month by dealing in flowers and opposite party no. 2, her father-in-law, was earning Rs. 400/- per month, and hence she was entitled to maintenance of Rs. 250/-.The claim to maintenance was resisted by her husband opposite party no. 1 on the ground that some four or five days after the marriage the applicant's father had taken her to his house along with the ornaments, clothes etc. and had thereafter never agreed to send her to his place. He denied maltreatment and said that he was still prepared to keep her with him and maintain her. It was further stated that by doing sewing and embroidery work and by doing Jujmani, the applicant was earning about Rs. 300/- whereas the opposite party me. 1 was a student of Intermediate classes and the joint family of the opposite parties consisted of about ten members while the income of the family was only Rs. 300/- earned by opposite party no. 2 who was a gardener in the district hospital. The learned Munsif- Magistrate before whom the matter came up for hearing found that the opposite party no. 1 was neglecting the applicant and. was legally and morally bound to maintain her. He also found that assuming according to the applicant's statement that her husband was earning Rs.300/- per month by selling flowers though it had not been proved and another Rs. 300/- were being earned by her father-in-law, this amount of Rs. 600/- would not be sufficient for the maintenance of the large family of the opposite parties and consequently nothing could be spared for the maintenance of the applicant.Finding further that the opposite party no. 1 was a student of Intermediate classes and it was not expected of him that he would give up studies and start earning in any manner to maintain the applicant, the application was dismissed with the observation that in case the husband possessed sufficient means he would certainly be liable to maintain the applicant.In a revision filed against this order, the learned Additional Sessions Judge, Hardoi observed that in case the husband was found to be earning Rs. 300/- the finding of the learned Munsif that the income was not sufficient to provide any maintenance to the applicant would be erroneous and would have been liable to be set aside, but as a matter of fact the opposite party no. 1 was not earning anything at all and was a mere student of B. Com. at the time and consequently he was not possessed of sufficient means to maintain the applicant. In the result the dismissal of the applicant's claim was therefore, upheld. It is against this order of the two courts below that the applicant has made this application under section 482 CrPC praying that the aforesaid two orders passed by the Courts below may be quashed, and a reasonable amount of maintenance be ordered to be paid to the applicant.

(2.) I have heard the learned counsel for the parties at quite some length. It has not been denied that the applicant is the wedded wife of opposite party no.1 and is living with her parentis. It has also been found as a fact that the husband is neglecting to maintain her and that the was not at fault in refusing to stay with the husband in view of the maltreatment and danger to her life. Thus her right to get maintenance from the husband was otherwise fully held established, but on the plea that the husband did not possess sufficient means to maintain her, the petition was dismissed. The only point for consideration therefore, was whether in the circumstances it could rightly be held that the opposite party no. 1 had sufficient means to maintain his wife and was yet neglecting or refusing to maintain her. As a fact it has been found that the husband was not earning anything by selling flowers and that he was a student studying in B. Com. when the revision was heard. It has also not been denied that the opposite party no. 2 is employed as a gardener in the district hospital. It has nowhere been suggested that his salary which was alleged to be about Rs. 300/- per month was anything substantially more than this. The point for consideration therefore, was whether it was a valid defence for the husband to say that although he was an able bodied healthy young man but because he was studying and was not actually earning though was capable of doing something, he was not bound to provide any maintenance to the applicant.