The court's decision on maintenance under Section 125 Cr.P.C. is based on the evidence of the respondent's income and the dependency of his old aged father, and the petitioner's failure to provide evidence of a higher income.

Veena Birbal, J.

CRL.M.A. No.13415/2013 (exemption)

Exemption as prayed is allowed, subject to just exceptions.

Application stands disposed of.

CRL.M.A. No.13416/2013 (condonation of delay)

There is a delay of 21 days in refiling the appeal.

In view of the reasoning given, delay in refiling the appeal is condoned.

Application stands disposed of.

CRL.REV.P. No.505/2013

1. The challenge has been made to order dated 15.4.2013 passed by the learned Family Court Judge, Delhi whereby maintenance @ Rs. 3,000/- p.m. has been awarded to the petitioner/wife in the proceedings under Section 125 Cr.P.C.

2. The parties were married to each other on 17.5.1995 at Delhi. After marriage, they lived together as husband and wife. No child is born from their wedlock. Petitioner/wife in her application under Section 125 Cr.P.C. had alleged that she was not treated properly in the matrimonial home and was turned out. Thereafter, on 23.5.2009 she had filed a petition under Section 125 Cr.P.C. for the grant of maintenance to her. The said petition was contested by the respondent/husband who is living in Bihar and working in Railways. Respondent denied having treated the wife with cruelty as was alleged by her. He admitted that he was working in Railways.

3. After completion of pleadings, the following issues were framed in the matter:-

“1. Whether the petitioner is entitled for maintenance from the respondent, if so, to what amount? OPP

2. Relief.”

4. In support of her case, petitioner had examined herself as PW1 and respondent had examined himself as RW2. The case of petitioner is that respondent’s salary is Rs. 14,000/- p.m. In the evidence, the petitioner has produced the salary slip Ex.PW1/1 of respondent as per which the gross salary of petitioner for the month of January-February 2009 was Rs. 10,314/-. The learned Judge, Family Court while analyzing the evidence has noted that respondent did not cross examine on aforesaid aspect of the matter.

Accordingly, the learned Judge, Family Court has taken the income of Rs. 14,000/- p.m. as the income of the respondent/husband as is alleged by petitioner/wife and out of that Rs. 3,000/- p.m. has been awarded to the petitioner/wife. In the evidence of respondent, it has also come that the respondent has the liability of his old aged father who is dependent upon him. The same is not challenged in the cross-examination. Considering the material on record, learned Family Judge has granted maintenance @ Rs. 3,000/- per month to petitioner/wife.

5. Aggrieved with the same, the present petition is filed.

6. The grievance of the petitioner/wife is that maintenance @ Rs. 3,000/- per month awarded to the petitioner/wife is on lower side and the petitioner/wife is entitled to much more amount.

7. I have heard counsel for the petitioner and gone through the material placed on record.

8. No material is placed on record by the petitioner/wife that the salary of the respondent/husband is much more or that the father of respondent is not dependent upon him. Even the salary certificate on record Ex.PW1/1 shows lesser income. However, learned Judge, Family Court has taken income of husband as Rs. 14,000/- p.m. as was the case of petitioner before the Family Court. Even before this court nothing is placed on record to substantiate that salary of husband is more than Rs. 14,000/- p.m. or that apart from salary he has any other income as is alleged. The relevant finding of learned Judge, Family Court is as under:-

“24. As regards means and income of the respondent, as per the case of the petitioner, respondent is working in Railways and getting a gross salary of about Rs.14,000/- per month. The petitioner has proved the salary of the respondent by way of salary slip which is Ex.PW-1/1 which shows the gross salary of the respondent for the month of January-February, 2009 as Rs.10,314/-. No question in the cross-examination has been asked from the petitioner in this regard.”

The findings given in impugned order by the learned Judge, Fam