KUSHLA WATI AND ANR. Vs. TEJA SINGH

JUDGEMENT

(1.) Kushla Wati and her minor daughter Shikha Rani through present petition filed by them under Sec. 401 of the Criminal Procedure have called in question, apart from the order dated Aug. 5, 1988 vide which the learned Judicial Magistrate 1 Class, Chandigarh, has partly allowed their application under Sec. 125 of the Code of Criminal procedure directing the respondent herein to pay to them an amount of Rs.250.00 and Rs.125.00 respectively for their maintenance.

(2.) Inasmuch as, all that is stated in support of the petition is that the petitioner-wife was entitled to far more towards maintenance as has been granted by the learned Judicial Magistrate 1st Class, Chandigarh, all that is necessary to mention herein is that Kushla Wati was married to Teja Singh, respondent, who is admittedly a Blacksmith employed with the Indian Railways in the year 1979. The only surviving child, i.e., petitioner No.2 Shikha Rani, who at the time when the petition was filed, was four years of age. It has been the consistent case of the petitioner that the respondent was earning about Rs.2700.00 per month. They, thus, prayed for an amount of Rs.500.00 each for their maintenance. On the crucial issue as involved in the present petition, the respondent stated that he was earning only Rs. 830.00 per month. Parties led evidence and it is significant to mention that the learned Magistrate determined the quantum of maintenance on the basis of the statement made by the respondent himself in his examination-in-chief where he stated that he was earning Rs.1100.00only. In his cross-examination, he, however, averred that he was earning Rs. 1200.00per month and this part of the statement was not taken into consideration by the learned Magistrate at all. It is quite apparent from reading of the written statement filed on behalf of the respondent and the evidence led by him that on a question of his income, he had not come up with the truth. As mentioned above, whereas he mentioned in his written statement that he was earning Rs.830.00, in his examination-in-chief when he appeared as his own witness he stated that he was earning Rs. 1100.00 per month. However, as mentioned above, when cross-examined, he stated that he was earning Rs. 1200.00 per month. Whereas it was difficult for the petitioner-wife to prove his income by documentary evidence, the same could easily be done by the respondent by producing on the record his pay slip or a certificate from his employer mentioning his exact income. The respondent, in my view, withheld the best evidence and for that reason adverse inference has to be drawn against him. Assuming, however, that he was earning Rs. 1200.00 only yet, the petitioner were entitled, put together, to an amount of Rs. 100.00 Petitioner No. 2 may be a minor but it is not possible to maintain even a child, who has ultimately to go to the school also, with a petty amount of Rs. 125.00. This Court is of the considered view that petitioner No. 2 as well should have been also entitled to maintenance of Rs. 250.00 per month.

(3.) In view of the facts and circumstances of the case detailed above, this revision petition is partly allowed. Respondent is directed to pay to petitioner No. 2 as well an amount of Rs. 250.00 per month from the date application under Sec. 125 of the Code of Criminal Procedure was filed. The impugned order passed by the learned Magistrate is modified to the extent indicated above.