The husband is bound to maintain his wife, and the court can determine the maintenance amount based on the husband's earning capacity.

JUDGMENT :

This criminal revision has been preferred by the revisionist against the judgment and order dated 05.02.2013, passed by the learned Family Judge, Kashipur, Udham Singh Nagar in Misc. Criminal Case No. 257 of 2010, Smt. Jaimalti Vs. Vijay Singh, whereby the application moved by the respondent – wife – Jaimalti, under Section 125 of the Code of Criminal Procedure, 1973 (for short “the Code”) has been partly allowed and the revisionist – husband – Vijay Singh, was directed to pay a sum of Rs.1500/- per month to the respondent – wife from the date of moving the application for the maintenance and to ensure to make payment on the seventh day of each month.

2. The instant revision is moved against the aforesaid judgment and order dated 05.02.2013, mainly, on the ground that the maintenance amount awarded by the learned Family Judge, to the respondent – wife is excessive and beyond the paying capacity of the revisionist, as he is just a labour.

3. I have perused the impugned judgment as well as the material available on record. It is admitted to both the parties that their marriage had been solemnized on 16.02.2010, as per the Hindu rites and rituals and after some time, a discord developed between them. According to the respondent – wife, the cause of discord was demand of dowry by the revisionist – husband from her and, her parents, resulting, the respondent – wife to leave the company of the revisionist – husband. After living separately, the respondent – wife submitted an application before the learned Family Judge and claimed Rs.5,000/- per month as maintenance from the revisionist – husband. It has been specifically pleaded in the application under Section 125 of the Cr.P.C. that the respondent – wife being a hardly educated woman is unable to maintain herself. As against this, it was pleaded that the revisionist – husband has one bigha of land in village and he is the only son of his parents, who earned his livelihood by doing agriculture and selling milk; and the respondent has a pucca house in the village.

4. The revisionist – husband filed a reply/ objection to the application under Section 125 of Cr.P.C. filed by the respondent – wife. In the objection, the marriage was admitted between the parties and the allegation of harassing the respondent – wife was outrightly denied and it has been pleaded that the respondent – wife took cudgels with the family on the instigation of the outsiders of the family.

5. The revisionist – husband denied any kind of demand of dowry from either, respondent – wife or from her family members. He pleaded that the respondent – wife was skilled in sewing, knitting and embroidery work. The revisionist –husband also pleaded in his objection that he hardly earned any money, and he had old parents to look after, who often fell ill. Both the parties, in order to substantiate their case, filed their respective affidavit(s) and were extensively cross-examined. The respondent – wife also filed the affidavit of one Shri Narian Singh as a witness – P.W.2 and the revisionist – husband, apart from him, also got examined Brijlal and Ramesh by filing their affidavits as D.W.2 and D.W.3. No documentary evidence was filed by the respondent – wife, in support of her claim while the revisionist – husband filed a photocopy of the compromise entered into between them.

6. As per the legal mandate, the learned Court below tried for re-conciliation between the parties, but failed. Thereafter the learned Family Judge proceeded with the disposal of the application moved under Section 125 Cr.P.C. by the respondent – wife. The learned Judge Family Court also recorded a finding that on the basis of material available on record, it is also proved that the respondent – wife was harassed physically and mentally by the revisionist – husband. According to the learned Family Judge, that was the reason for the respondent – wife to live separately from the revisionist – husband. The learned Family Judge did not believe the sub