MEGHANA M PATIL Vs. MADHUKAR B PATIL

JUDGEMENT

(1.) THIS petition is preferred by the petitioner-wife against the order dated 12th october, 1992,passed by the learned Addl.Sessions Judge, Raigad,Alibag, in Cri.Revn.Appln.No.91/90 dismissing the revision petition preferred by the petitioner against the order dated 26.10.90 passed by the learned Chief Judicial Magistrate, Alibag in Cri.Misc.Appln.No.89 of 1989, for awarding maintenance from the respondent-husband.

(2.) HEARD the learned counsel for the petitioner Mr.D.M.Vora. The advocate for other side is absent. Having regard to the concurrent finding of both the courts below on the point of source of income of the respondent-husband, there is much scope for interference with the order. However, both the trial courts have committed an error in rejecting the applications of the petitioner-wife on the ground that the respondent-husband has no income and he is unemployed. This is not a ground for dismissing the application. Further, both the courts have committed an error in holding that the petitioner-wife is serving and earning Rs.450/- per month. There is a categorical denial to this suggestion. Despite this, without any circumstantial evidence, both the courts have believed this suggestion which is also not correct. The respondent-husband is under legal obligation to maintain his wife and children under any circumstances irrespective of his source of income. In the instant case, the respondent-husband is a healthy man, capable to earn and in fact, he was earning Rs.500/- per month but his service was terminated. Further,there is a small child who is at present 5 years old to be maintained. Both the lower courts have taken a very erroneous view in this case. Further the learned counsel has submitted that the respondent-husband has his own agricultural land admeasuring 47 hectares and 7 acres and he is earning Rs.50,000/- per year out of this agricultural land. The learned counsel submitted that the documentary evidence to this effect was not available at the time of hearing of maintenance application before the trial court but today, the petitioner-wife is in a position to prove the source of income of the respondent-husband. The petitioner has come with a new fact and evidence before this court regarding the source of income of respondent-husband which this court cannot record in the revisional jurisdiction but in the interest of fair justice, the matter required to be remanded to the trial court for fresh evidence regarding the income of the respondent-husband.