1. - Heard learned counsel for the petitioner. The petitioner is aggrieved against the order of Family Court, Jodhpur dated 27.2.2004. by which the trial court on the application filed by the respondents no. 1 to 4 granted interim maintenance of Rs. 500/- each to the respondent no. 1 Smt. Jethi and respondent no. 4 Neermal.

2. Learned counsel for the petitioner submitted that after separation of about more than 15 years, the applicants/respondents submitted petition under Section 125 Criminal Procedure Code with all false allegation and even claimed maintenance for two children, one of whom was aged 30 years and another was married daughter. The trial court only on the ground that the respondent no. 1 is wife of the petitioner and respondent no. 4 is disabled person granted maintenance of Rs. 500/- each after rejecting the claim of the respondents no. 2 and 3. Not only this, even the trial court also observed that the respondent no. 1, wife of petitioner, has her own income from agriculture. Despite this, the trial court without holding that the respondent no. 1 and 4 have no sufficient means to maintain themselves, awarded Rs. 500/- each per month.

3. I considered the submissions of learned counsel fort he petitioner and perused the reasons given by the court below in the impugned order. The respondents are residing separate 125 Criminal Procedure Code was submitted, by that time, the respondent no. 3, daughter of the petitioner, was already married. The respondent no. 2 was already major and the respondents did not disclose how they survived for such a long period when they were not getting any maintenance from the petitioner. Be it as it may be, there is a clear finding of the court below that even the respondent wife herself in her claim petition admitted that she is in possession of agriculture land measuring 6 bighas and she used to cultivate the same. The court below held that respondent no. 1 has her own income and the court below also held that the respondent no. 4 is getting the disability allowance from the State. In view of the above, it appears that without holding that the respondents are unable to maintain themselves, the court below granted maintenance amount against the petitioner. It will be worthwhile to mention here that in para no. 3 of the order, the court below observed that in view of the contentious issues, the claim of bot the parties can be decided only after evidence. In view of the above reasons, I do not find any reason for the Court to pass the order of maintenance merely on the ground of sympathy when of the applicant was having her own income and the other is getting disability allowance. There is no proof about the income of the petitioner.

4. In view of the above reasons, the criminal misc. petition is allowed, the order dated 27.2.2004 is set aside. However, it is made clear that if any amount has already been recovered by the respondents in pursuance of the order of the court below dated 27.2.2004, that amount shall not be recoverable by the petitioner. It is further made clear that any observation made in this order shall not come in the way of the claim made by the respondents/applicants in their main petition.

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