Conclusive determination of the husband's income and the wife's living circumstances are prerequisites for awarding maintenance under Section 125 of the Criminal Procedure Code.

Mahendra Dayal, J.

1. The revisionist has filed this criminal revision against the judgment and order dated 05.01.2016 passed by Principal Judge, Family Court, Lucknow in Criminal Misc. Case No. 462/2007, whereby the revisionist has been directed to pay maintenance to the opposite parties No. 2 and 3 @ Rs. 1,000/- and Rs. 500/- per month respectively with effect from the date of the application i.e. 06.06.2007 upto December, 2008; @ Rs. 2,000/- and Rs. 1,000/- per month respectively with effect from January 2009 to December, 2010; a sum of Rs. 2,500/- and Rs. 1,500/- per month respectively with effect from January, 2011 to December, 2014 and Rs. 3,000/- and Rs. 1,500/- per month respectively with effect from January, 2015. It has also been provided that in case, the opposite parties No. 2 and 3 are getting the maintenance in any other case, the same shall be adjusted towards the quantum of maintenance.

2. I have heard learned counsel for the parties and perused the record.

3. It is an admitted fact that the revisionist was married to the opposite party No. 2 in the year 2004 and the opposite party No. 3 is the son, who was born out of their wedlock. According to the opposite parties No. 2 and 3, even after the birth of the opposite party No. 3, the demand of dowry and cruel treatment with the opposite party No. 2, by the revisionist and his family members, continued and it reached to such an extent that on 11.01.2006, both of them were forcibly evicted from the matrimonial home. It is said that even after that, the revisionist did not stop his demand of motorcycle and Rs. 5.00 lacs cash. With the aforesaid allegations, the opposite parties No. 2 and 3 filed an application under Section 125 Cr. P.C. It was also stated by them that the revisionist is working as Manager in M/s. Azam Ali Alam Ali, from where he gets Rs. 15,000/- per month as salary.

4. The revisionist filed objection denying the allegations made by the opposite party No. 2 and stated that the opposite party No. 2 herself left his company and started living with her parents. When the revisionist asked her to live with him, she insisted the revisionist to live in her parental home, to which the revisionist did not agree. Since then the opposite party No. 2 started harassing the revisionist in various ways. With regard to his income, it was stated by the revisionist that he works as labourer in M/s. Azam Ali Alam Ali and his salary is only Rs. 6,000/- per month. He also stated that his aged mother also lives with him; while the opposite party No. 2 is a teacher in Spring Bird School.

5. The parties led oral evidence before the Court in support of their contentions and the learned Principal Judge, Family Court, Lucknow, by the impugned judgment and order, allowed the application filed by the opposite parties No. 2 and 3 and directed the revisionist to pay maintenance in the manner as stated aforesaid.

6. It has been submitted by the learned counsel for the revisionist that without recording any finding as to the income of the revisionist, he has been directed to pay so much amount of maintenance, which is slightly less than his total salary. The quantum of maintenance is to be fixed, keeping in view the income of the husband and their living standard. The amount of maintenance granted to the opposite parties No. 2 and 3, is highly excessive looking to the income of the revisionist. It has also been submitted by the learned counsel for the revisionist that the maintenance has been awarded from the date of application i.e. 06.06.2007 without recording any reason as to why the maintenance was being awarded from the date of the application and not from the date of the order. For this reason also, the impugned judgment and order is illegal.

7. It is also submitted on behalf of the revisionist that in order to claim maintenance under Section 125 Cr.P.C., the wife has to prove that she is living apart for some sufficient cause. The learned court below has not considered thi