BALBIR KAUR ALIAS HAMIR KAUR Vs. JIT SINGH

JUDGEMENT

(1.) The parties to this litigation were married in the year 1965 and out of the wedlock, a daughter, then a son and then another daughter were born. Thereafter the parties parted company. The son was kept by Jit Singh respondent and the two daughters were taken away by Balbir Kaur appellant when she left her husband's house or was made to leave his house which would be a matter of bone of contention between the parties. Since Jit Singh did not pay maintenance to his wife or his two daughters, Balbir Kaur filed an application under section 125, Code of Criminal Procedure, for grant of maintenance for herself and the two minor daughters. The learned Magistrate by a judgment dated 16th February, 1979 awarded Rs. 200 per month to the wife and Rs. 100 each to both the daughters. The husband challenged the aforesaid order and the learned Sessions Judge by judgment dated 12th June, 1979, allowed the revision in part. While maintaining the order of maintenance with regard to the minor daughters, the order of maintenance to the wife was upset on the ground that she had inherited he property from her father with which she could maintain herself. Four months after the aforesaid order; on 19th November, 1979, Jit Singh filed a petition under Section 25 of the Guardian and Wards Act claiming custody of the two daughters. In the meantime, the wife filed Criminal Revision No. 967 of 1979 in this Court against the order of Sessions Judge for maintenance and for restoration of the order of the learned Magistrate which was admitted. After notice of Criminal Revision went to the husband, he also filed Criminal Revision No. 1479 of 1980 in this Court to challenge the order of maintenance granted to the two minor daughters. That revision was filed beyond limitation and, therefore, an application for condonation of delay was also filed. That revision was lot admitted nor was the application for condonation of delay decided. It was ordered in that case that the same be also heard along with Cr. Revision No. 267/1979. Accordingly, both the criminal revisions and the application for condonation of delay in husband's revision are still pending for disposal in this Court. In due course, the application filed by husband for custody of the minor daughters was allowed by the trial Judge by order dated 4th April, 1981 and after following two precedents is granting custody of a minor son to the father, a direction was issued that the custody of two minor daughters be given to Jit Singh, father. Balbir Kaur, mother of the minor daughters filed the present F. A. O. No 155 of 1981, which was put up for hearing before me on 4th of February, l982. After hearing the counsel for the parties, I was of the that "both the Criminal Revisions also deserved to be heard along the appeal. That is how, both the Criminal Revisions have also posted for final hearing along with the appeal and this order will of all the three matters. Whether Jit Singh was liable to pay maintenance to his wife and minor daughters This matter has to be considered in the two Criminal Revisions and the result of the two Criminal Revisions will have hearing on the decision of appeal from the order the trial court regarding the custody of the two minor daughters. Accordingly, I first proceed to consider Criminal Revision No. 967 of 1979 filed by the wife against the order of the learned Sessions Judge, Sangrur. Crl. Rev. No. 967 of 1979 (Balbir Kaur v. Jit Singh)

(2.) The learned Magistrate had found that the wife and the two minor children were entitled to the maintenance and nothing was brought on record which could disentitle them for the same under Section 125 of the Code of Criminal Procedure, 1973. It was also found by the trial Magistrate that the husband owned 28 bighas of agricultural land and one tractor and that his annual income was Rs. 7,000. On this basis, Rs. 200 were awarded to the wife and Rs. 100 each to the two minor daughters. On the husband's appeal, the learned Sessions Judge set aside the order of maintenance passed in favour of the wife on the reasoning that the wife inherited 20 kanals of land from her father and since according to her brother's statement, the income of her share was Rs. 1,250 per year, that was adequate income for her to make a living as she was not entitled to a comfortable and luxurious life under the provisions of Section 125 of the Code of Criminal Procedure, 1973. However, the learned Sessions Judge had maintained the finding of the trial court to the effect that she had sufficient ground for staying away from her husband and therefore, was entitled to maintenance in case she had no independent income.

(3.) Mr. Harbans Singh, appearing for the wife urged that there is a basic fallacy in the reasoning adopted by the learned Sessions Judge because assuming that Rs. 1,250 per year would be the income of the land, inherited by the wife, that would he the income if she herself cultivates her share of the land but in case she cultivates the land through a tenants or through her brothers, then her income would not be one found by the learned Sessions Judge but would be 1/3rd of that. I find considerable merit in this argument. The learned Sessions Judge believed the statement of Joginder Singh with regard to the annual income per killa. The income given by Joginder Singh was for self-cultivated land. No evidence has been brought on the record that the wife was cultivating the land herself. Accordingly, when she is getting it cultivated from somebody else, her income would be only 1/3rd which would come to about Rs. 400 per year. The learned Sessions Judge further did not find any fault with the award of Rs. 200 per month made by the learned Magistrate. He contended merely by saving that Rs. 1,250 per year that is, about Rs. 100 per month, was adequate income to make a living. Even the minimum wage is more than Rs. 200 per month from which it is not easy to make both ends meet. Accordingly I am of the view that there was no scope for interference in revisional jurisdiction exercised by the learned Sessions Judge, with the order of the trial Magistrate that the wife was entitled to Rs. 200 per month, for her maintenance.