RAM GOPAL GAUR Vs. STATE OF U P

JUDGEMENT

(1.) N. B. Asthana, J. Opposite Party No. 2 Smt. Rajbala Gaur, who was admittedly the wife of the revisionist filed an application under Section 125 Cr. P. C. claiming maintenance allowance for herself and their minor son. The trial Court awarded Rs. 200/- as main tenance allowance for herself and Rs. 150/- per month for their son. Aggrieved by this judgment and order opposite party No. 2 filed Criminal Revision No. 401 of 1988, which was allowed by IVth Addl. Sessions Judge, Bulandshahr on 25. 5. 89. He enhanced the maintenance allowance and raised it to Rs. 500/- for opposite party No. 2 and Rs. 500/- for their son, Pradeep Kumar. It is not disputed that Pradeep Kumar is the legitimate son of the revisionist. The first point urged is that the revisional Court decided the revision without service of notice upon the revisionist. From the judgment of the revisional Court it appears that notice was sent by registered post, which was returned back with the endorsement "not Met". The revisional Court took this endorsement as indicating refusal and decided the revision. The revisional Court was in error in taking this endorsement as of refusal. However, this would not make any difference because in this revision the parties have been heard at length. No useful purpose would have been served by remanding the revision for fresh decision as it would have caused inconvenience to both the parties.

(2.) THE first point urged in this revision is that the revisional Court was not justified in enhancing the maintenance allowance to Rs. 500 for each of the two claimants. THE revisionist is working as Assistant Engineer in U. P. State Electricity Board. He has filed a letter dated 16. 4. 90 indicating that in all he is getting Rs. 4366 as salary. THE dearness allowance has considerably increased after 16. 4. 90 in accordance with the price index. It has been argued on behalf of the revisionist that Rs. 500/- per month is being deducted as G. P. E Rs. 250 is being deducted on account of advance loan from G. P. F. taken by him and Rs. 360/- per month as instalment of a bank loan drawn by him. Rs. 140/- per month is being deducted for the loan drawn to purchase Scooter. This sum of Rs. 750/- cannot be taken out of consideration in earning capacity of the revisionist to pay. A person in order to defeat the claim of his wife may obtain a number of loans and then say that his almost entire salary is being paid for re- payment of the loan and, therefore, he is not entitled to pay the maintenance allowance. This sum of Rs. 750/- is to be included in his salary for purposes of determination of his capacity to pay the maintenance allowance. Only Rs. 500/- is being deducted as compulsory deposit in G. P. F. He was, therefore, getting Rs. 3866/- as salary on the date the revision was decided. THEreafter he must have earned sufficient amount as dearness allowance. Taking all the aspects into consideration and also the status of the revisionist it cannot be said that maintenance allowance of Rs. 1000/-granted to the opposite party No. 2 and their son was in any way excessive.