PARKASH SINGH Vs. WARYAM KAUR

JUDGEMENT

(1.) PRESENT is a revision which has been directed against the order dated 24.9.1996 passed by the Court of Judicial Magistrate Ist Class, Nawanshahr who allowed interim maintenance at the rate of Rs. 400/- per month in the proceeding under Section 125 Cr.P.C. to Smt Waryam Kaur against her husband Parkash Singh. Admittedly, the parties in this case were married 40 years earlier prior to the filing of the petition under Section 125 Cr.P.C. and out of this wedlock Smt. Waryam Kaur petitioner gave birth to five children i.e. three sons and two daughters. Petitioner Smt. Waryam Kaur was living separately from her husband alongwith her unmarried daughter. The maintenant has been sought by Smt. Waryam Kaur, respondent in this petition on the plea that she was handicapped and not in a position to walk. She is aged about 68 years and is unable to earn anything. This petition was contested by Parkash Singh on the plea that the petitioner Smt. Waryam Kaur owned some property. He has further averred in his reply that he is an old man of 81 years and does not earn anything. However, when the parties addressed arguments before the learned Magistrate, Parkash Singh admitted that he runs and owns a Chemist Shop at Garh Shankar. After considering the rival contentions of the parties and keeping in view the status of the parties the learned Magistrate allowed the interim maintenance at the rate of Rs. 400/- per month to Smt. Waryam Kaur from the date of the passing of the impugned order against which the present revision has been filed. During the course of these proceedings, a local commissioner was appointed by this Court on 10.12.1996 and as per the report of the local commissioner, there is a shop about 12' in width and 28' in depth and a business of general merchant is being run by Jitender Kaur daughter of Smt. Waryam Kaur under the name and style of Surinder General Store and she earns about Rs. 1500-2000/- per month. Apart from this the finding of the local commissioner are that the are three rooms in the back portion of the shop which are also in possession of Smt. Waryam Kaur and two rooms are of the measurement 10' x 10' and third is 12' x 20', it has also been stated by Smt. Waryam Kaur before the learned local commissioner that the property is on rent at the rate of Rs. 100 per month and eviction petition is also pending before the Court of Rent Controller, Nawanshahr and she is unable to move and she has been neglected by her husband. During the course of submissions, the learned counsel for the petitioner submitted before me that petitioner Parkash Singh is a man of 83 years of age. He has met with an accident and is unable to move and in these circumstances he is not in a position to pay anything to his wife much less Rs. 400/- per month.

(2.) ON the contrary, Mr. Tung, appearing on behalf of Smt. Waryam Kaur submits that it has even been admitted by the petitioner before the learned Magistrate that he runs a Chemist shop at Garh Shankar. In the impugned order there is no indication that the learned Magistrate considered the aspect of the income which is being enjoyed by Smt. Waryam Kaur through her daughter. It is a proved fact prima facie that there is a general merchant shop which is run by Smt. Jatinder Kaur daughter of Smt. Waryam Kaur. Whether the income from that shop is sufficient for the livelihood of Waryam Kaur is a point which requires education. Normally, this court in a revisional jurisdiction does not interfere in the finding of fact recorded by the Magistrate but if there is a palpable illegality or material irregularity in not appreciating the evidence led by the parties on record; leading prejudice to one of the parties, certainly this Court would interfere in the revisional jurisdiction. The learned Magistrate has not taken into consideration of the effect of income being enjoyed by Smt. Waryam Kaur through her daughter. The Magistrate is also directed to take note of the alleged accident which had occurred after the passing of the impugned order.

(3.) RESULTANTLY , the present petition is allowed and the impugned order is set aside. Directions are given to the parties to appear before the learned Magistrate in the trial Court on the date fixed. Order accordingly. <OP>Trainee2</OP>