SARASWATI DEVI Vs. STATE OF U P

JUDGEMENT

(1.) The revisionist who is admittedly the wife of Opp. Party No. 3 Ganesh Singh filed an application under Section 125 Cr.P.C. in the Court of Chief Judicial Magistrate, Nainital claiming maintenance allowance at the rate of Rs. 500/- per month alleging that she was married about 20 years ago. She remained with her husband for about 11 years and performed her marital obligations. No child could however be borne out of this wedlock on account of which her husband started harassing her on small matters. He developed illicit relations with the sister of the wife of his elder brother. Subsequently he married her and kept her in the same house. The revisionist objected to it whereupon he started treating her cruelly and forced her to leave the house after 3 years of his second marriage. She then started living with the parents. Her husband was employed in the Army. He is getting Rs. 900/- per month as pension and carrying on a shop which gives him an income of Rs. 500/- per month and is also earning Rs. 1200/- per month from his cutlivation. She claimed herself to be an illiterate lady, unable to earn her livelihood.

(2.) The husband contested this application stating that in the year 1970 in his absence the revisionist left his house alongwith ornaments etc. Upon coming on leave he went to bring his wife but she did not come. In the year 1972 he again went to his in-laws place to bring his wife. His father-in-law threatened him that in case he again came to his house he would be shot dead. In the year 1973 he married Smt. Amba. Out of this wedlock four children were born. He is ill and since the year 1985 is under treatment. He gets Rs. 500/- per month as pensi6n which is barely necessary to meet his medical bill. He has no other source of income. The revisionist is living separately out of her own Will for the last about 17 or 18 years and is therefore not entitled to claim any maintenance allowance. He also alleged that in the year 1973 the revisionist married some person of village Haliu and for that reason also she is not entitled for maintenance allowance.

(3.) Both the parties adduced evidence in support of their respective contentions. The Trial Court came to the conclusion that it has not been established that the revisionist has married a second time in the year 1973. Admittedly, the husband has married Smt. Amba and this is sufficient justification for the revisionist to live separately from her husband. It disbelieved the husband's contention that the revisionist is living separately since the year 1970. The Trial Court further came to the conclusion that from the material placed on record, it has not been established that the revisionist has any source of income. It further came" to the conclusion that the husband has cultivation, is maintaining a second wife and their four children and therefore he has sufficient means to pay the maintenance allowance. Taking all the circumstances into consideration the Trial Court awarded Rs. 500/- per month as maintenance allowance from the date of application.