The court upheld the maintenance order based on evidence of cruelty, the petitioner's second marriage, and his sufficient means of income from agricultural land and a grocery shop.

This revision is directed against the order dated 02.09.2013 passed by the learned Principal Judge, Family Court, Hazaribagh in M. P. Case No.66 of 2007 whereby the petitioner was directed to pay the maintenance @Rs.3000/-per month to O.P. No.2, wife and @Rs.1000/- each per month to her minor son and daughter.

2. Mr. Md. Zafar Alam, learned counsel, for the petitioner has submitted that the court below has failed to appreciate that the petitioner is a disabled person and he is not gainfully employed. That he does not have any independent source of income or sufficient means to maintain himself and he is dependent upon his parents. That the ordered maintenance amount is exorbitant and excessive and these facts have not been considered by the court below while passing the impugned order. It has further been submitted that the petitioner had filed an application for restitution of conjugal right under statute 281 of the Mohammedan Law, which shows that the petitioner is still ready and willing to keep O.P. NO.02, wife but she on her own accord has left the matrimonial home. That there is no sufficient cause for her to live separetely hence, she is not entitled to maintenance under Section 125(4) of the Cr.P.C. That the impugned order is not sustainable in law or on facts.

3. Mr. M.I. Khan, learned counsel, for O.P. No.02, while countering the arguments has submitted that the court below has considered the testimony of the witnesses and also discussed the evidence of the petitioner, who examined himself as R.W. -4, and stated that he is a disabled person. The petitioner has deposed that he is unable to do any work properly on account of his disability and in his cross-examination he admitted that he does not have any difficulty in moving around and his father has a grocery shop. That the court below has also considered and discussed the evidence of other witnesses and has passed the order of maintenance on the basis of the evidence on record. That the impugned order does not require any interference by this court.

4. Heard, Perused the impugned order. The court below has discussed the evidence of the witnesses examined on behalf of O.P. No.02, namely, P.Ws. -1 & 2, who have stated that O.P. No.02 was subjected to cruelty and harassment by the petitioner for non-fulfillment of demand of Rs.1,00,000/-. That she was ousted from the matrimonial home and she is living with her parents. The court below has also discussed the evidence of the petitioner, who has been examined as R.W.-4, who has stated that O.P. No. 02 has been living voluntarily at the house of her parents along with her children without any reasonable cause and without the consent of the respondent/petitioner. This statement of the petitioner is falsified by his admission in cross-examination that he has solemnized a second marriage. The judgment of the Matrimonial Suit No.07 of 2006 has been annexed as Annexure – 2 to this revision application and on perusal of the judgment, it transpires that the court below has dismissed the case on the ground that the petitioner had solemnized second marriage and this was the just and sufficient ground for O.P. No.02/wife, to live separately.

5. The petitioner has admitted that his father has a grocery shop and his second wife and children are being maintained by his father. He has also admitted that he is spending Rs.500/- to 600/- per month on account of litigation. The court below has noticed that the petitioner is able to move properly and his claim of disability has been disbelieved and this finding does not require any interference.

6. It is evident from the deposition of R.Ws. -1 & 2, as discussed in the impugned judgment that the petitioner has agricultural land. The witnesses of the petitioner have also admitted that the petitioner has agricultural land. The father of the petitioner was examined as R.W. -3, who admitted in his cross-examination that he has agricultural land and a grocery shop. This aspect has been discussed