Dinesh Chand v. Smt. Maya Devi

1. These petitions have been filed by Dinesh, husband of Smt. Maya Devi against the judgment of the learned Additional Sessions Judge No. 1 Alwar dated January 3, 1986. Both are being disposed of by this common order.

2. The non-petitioner Maya Devi is the wife of the petitioner Dineshchand. This fact is no longer in dispute. The non-petitioner filed an application under Section 125 Cr.PC on November 13, 1980 for grant of maintenance to her and to her minor female child Rampi. The petition was filed on the ground that the petitioner, her husband, is having sufficient means but has refused to maintain her and neglected her and her minor child. The non-petitioner Smt. Maya Devi was not having any income of her own. As per her case the petitioner is having monthly income of Rs. 10,000/-. She claimed the maintenance at rate of Rs. 800/- per month for herself and at rate of Rs. 500/- for her minor child. It was alleged that the petitioner married one Indira. The application was contested by the petitioner on the ground that the non-petitioner, his wife, was unchaste. She was having cancer and as such he could not have sexual intercourse with her. It was also stated that she left the house of her own. It was denied that the petitioner married Smt. Indira. Learned Magistrate made inquiry into the matter and recorded a finding that the monthly income of the petitioner is Rs. 10,000/-. Under his order dated January 25, 1985, he ordered that the petitioner shall pay the maintenance at rate of Rs. 400/- per month to the non-petitioner and Rs. 300/- to her female child. But he ordered that the payment shall be made from the date of the order. Against the aforesaid order of the learned Magistrate, a revision petition was filed by the non-petitioner Maya Devi before the earned Sessions Judge Alwar which was transferred to the court of Additional Sessions Judge No. 1 Alwar. The learned Additional Sessions Judge allowed the revision in part and while maintaining the amount of maintenance awarded to the non-petitioner and her minor female child, ordered that the amount of maintenance shall be payable from the date of the application i.e. with effect from November 15, 1980.

3. Aggrieved against the aforesaid order the miscellaneous petition has been filed by the petitioner. Criminal Revision petition has been filed against the order granting the maintenance to the non-petitioner, and her minor child, as the second revision is not maintainable; the petitioner has filed the criminal miscellaneous petition against that part of the order of the learned Additional Sessions Judge by which he ordered that the maintenance shall be payable from the date of the application. The learned courts have held that monthly income of the petitioner is Rs. 10,000/- per month. It is a finding of fact arrived at on the material on record and it may be stated that Smt. Maya Devi stated in her statement as PW 1 before the Magistrate that the petitioner was having monthly income of Rs. 10,000/-. She also gave the details of his various businesses but she was not subjected to cross examination. Therefore it can be said that the petitioner was having sufficient monthly income and that so far as non-petitioner Maya Devi and her minor child are concerned, they are not having any income of their own. The petitioner stated that he never refused to maintain her during the course of inquiry as well as thereafter that he was willing to maintain the non-petitioner in case she lived with her. The petitioner was present and he could not deny that in a case under Section 494 IPC conviction has been passed against him by the Magistrate at Mathura though according to the petitioner an appeal is pending against that judgment. Under the circumstances, it can be said that sufficient case for the award of maintenance to the non-petitioner and her minor child has been made out and the awarding the amount at rate of Rs. 400/- per month to the non-petitioner and at rate of Rs. 300/- per month to her minor child cannot be said to be excessive.

4. The question is whether the learned Additional Sessions Judge should have interfered in the discretion of the learned Magistrate and should have ordered that the amount of maintenance shall be payable from the date of application i.e. November 15, 1980. There are some facts which are not in dispute. An application for divorce under Section 13 of the Hindu Marriage Act was filed by the petitioner against non-petitioner in the court of District Judge and in that case on the application under Section 24 of the Hindu Marriage Act filed by the non-petitioner an order for payment of Rs. 650/- was made by the learned District Judge to the non-petitioner and her minor female child. A revision petition is pending against the aforesaid order. The petitioner withdrew the divorce petition perhaps because he thought that thereby he will avoid the payment of Rs. 650/- per month. The revision petition was filed some time in 1982. Under Section 125(2) Cr.PC he maintenance allowance ordered to be paid under Section 125(2) Cr.PC shall be payable from the date of order, or if so ordered from the date of application. Therefore, the amount is ordinarily payable from the order, but if the Court has power to order the same to payable from the date of the application for maintenance. The law is settled that even in the proceedings under Section 125 Cr.PC the Magistrate has power to grant interim maintenance. But perhaps no application for grant of interim maintenance was filed before the Magistrate. During the pendency of the petition for divorce on the application of the non-petitioner under Section 24 of the Hindu Marriage Act, 1955, an order for maintenance at rate of Rs. 650/- was made. It has been given out that the petitioner has paid the entire amount of arrears under the order of the learned Additional Sessions Judge, may be because the order of attachment has been issued by the learned Magisrate. But the fact that tie petitioner could pay the substantial amount goes to shows that he is a man of means and therefore after taking into consideration the fact that the petitioner has himself filed petition for divorce in which the order of maintenance has been made under Section 24 of the Hindu Marriage Act, the petitioner withdrew that petition perhaps in order to avoid the payment of amount ordered by the learned District Judge. If the learned Additional Sessions Judge has ordered the maintenance amount to be payable from the date of the application, I do not find the present case of such a nature where I should interfere in the order made by the learned Additional Sessions Judge.

5. So far as the order granting maintenance at rate of Rs. 400/-to the non-petitioner and Rs. 300/- per month to her minor female child is concerned, as already stated, the grant of maintenance cannot be said to be excessive as the courts below have taking into account the means of the petitioner and thereafter fixed the amount of maintenance.

6. Consequently, I find no merits in both revision petition as well as in miscellaneous petition. They are hereby dismissed summarily.