This revision petition of wife and son arises out of the order dated 14.10.2010 in Criminal Miscellaneous No.375 of 2008 passed by the Judge Family Court, Belgaum. By the impugned order the trial Court has rejected the claim of the 1st petitioner for maintenance and granted maintenance of Rs.500/- per month to the 2nd petitioner till he attains majority.

2. The petitioners filed Criminal Miscellaneous No.375 of 2008 alleging that they are the wife and son of the respondent and after the marriage, respondent and his family members subjecting the 1st petitioner to physical and mental cruelty in connection with their unlawful demands, when she was 4 months pregnant, drove her out of the matrimonial home. They further contended that, after the respondent driving her from the matrimonial home she took shelter in her parental house and stayed with the 2nd petitioner. They contended that the respondent having sufficient means has willfully neglected to maintain them despite the issue of notice dated 09.11.2006 and has contracted the 2nd marriage.

3. The respondent contested the petition denying of allegations of cruelty, driving out the 1st petitioner from the matrimonial home. He contended that the 1st petitioner was nagging, non-cooperative, was insisting him to stay with her in her parental house and she herself has deserted him. He further contended that he was working as cleaner in truck and earning Rs.75/- per day and maintaining his old aged parents. He further contended that he cannot afford to pay separate maintenance to the petitioners. So far as the notice, he contended that he has issued a befitting reply to the same.

4. Petitioner got examined herself as PW-1. Respondent got examined himself as RW-1. Though, he examined RW-2 to substantiate his claim of willful desertion on the part of petitioner No.1, RW-2 did not tender himself for cross-examination. Therefore his evidence was discarded. On behalf of the petitioners, copy of the notice was marked as Ex.P-1.

5. The trial Court after hearing the parties, by the impugned order rejected the claim of the 1st petitioner and granted maintenance of Rs.500/- per month only to the 2nd petitioner on the following grounds :

(i) During the conciliation proceedings before the Presiding Officer respondent offered to setup a separate house for the 1st petitioner, still she did not agree to join the respondent and father of the 1st petitioner refused to send her to the matrimonial home.

(ii) Petitioners did not examine the father of the 1st petitioner to substantiate their contention that his several requests to the respondent to take back the 1st petitioner went in vain.

(iii) Cruelty alleged by the petitioner is not proved.

(iv) The 1st petitioner has failed to prove the willful negligence or refusal on the part of the respondent to maintain her.

(v) The respondent earns only Rs.75/- per day, therefore award of Rs.500/- per month to the second petitioner is reasonable.

6. Sri. Abhisheka Patil for Sri. M.G. Naganuri the learned counsel appearing for petitioners seeks to assail the impugned order on the following grounds :

(i) The proceedings under Section 125 of Cr.P.C are not pari materia to the criminal cases and the moment of the petitioner/wife enters the witness box and states that she has no sufficient means and the husband failed and neglected to maintain her, it would be for the husband to prove otherwise ;

(ii) The husband on receipt of the notice Ex.P-1 did not reply the same contraverting the allegations of cruelty, willful negligence to maintain the petitioners or his means.

(iii) The trial Court’s reference in the impugned order regarding the conciliation proceedings which were conducted in the chamber of the Judge to base the same to decline the relief is total violation of Rule 8 of the Family Courts (Procedure) Rules, 1987.

(iv) The finding of the trial Court that respondent’s income is Rs.75/- per day is unsustainable as the respondent had not denied the claim made in the no