The High Court Of Madhya Pradesh Cr.R. No. 1645/2018 ( SMT. VANDANA PAL (JATAV) & ANOTHER Vs DHARMENDRA PAL )

Gwalior, Dated : 02-03-2022 Shri Rajeev Shrivastava, learned counsel for the applicants.

Shri Ankit Saxena, learned counsel for the respondent.

This revision petition under Section 397 and 401 of the Cr.P.C has been filed against the order dated 11/01/2018 passed by Chief Judge of Family Court, Gwalior in Miscellaneous Criminal Case No. 766/2018 whereby application of the applicant/wife for interim maintenance under Section 125 of the Cr.P.C has been dismissed and interim maintenance of Rs. 1200/- per month has been awarded in favour of minor son of the applicant/wife.

Heard learned counsel for the parties.

Counsel for the petitioner submits that applicant/wife is compelled to live separately from respondent/husband due to his cruel behaviour. She is unable to maintain herself for want of any independent income. Respondent/husband is able bodied person, he is earning Rs. 25,000/- to 30,000/- per month and he is duty bound to maintain his legally wedded wife and his minor son. Learned Family Court has dismissed her application for interim maintenance on the premise that she is having private job in hotel Radiance City and she is earning Rs. 6500/- per month therefrom alongwith breakfast and dinner. It is true that earlier the applicant/wife used to do private job for livelihood but afterwards she was expelled from the job and now she is totally dependent on her parents, therefore, she is entitled for interim maintenance from her husband. The minor son of the parties who is of 14 years of age and school going child has been awarded only Rs. 1200/- per month which is quite insufficient, therefore, looking his educational expenses his interim maintenance should also be enhanced to Ten Thousand per month.

Learned counsel for the respondent-husband submits that on the basis of admission of the applicant and other documentary evidence, the Family Court rightly came to the conclusion that applicant/wife is working in a hotel,therefore, it can not be presumed that she is not able to maintain herself. On the other hand, respondent/husband is earning only Rs. 4,000/- per month which is evident from his pay certificate issued by the Contractor underwhom he is working. Thus, no ground for interference in impugned order is made out and petition deserves to be dismissed.

Heard and considered.

The main application filed for maintenance under Section 125 of the Cr.P.C is to be decided finally after evidence of both the parties, therefore, it would not be appropriate to comment on merits, however for disposal of this petition, suffice it to say that undisputedly applicant No.1 is legally wedded wife of respondent and applicant No.2 is his minor son who are living seperately with the parents of applicant No.1. Criminal case under Section 498-A and 406 of the IPC was registered against the respondent, hence, prima-facie it can be presumed that petitioner is living seperately for reasonable cause. The learned Family Court has denied interim maintenance to the applicant on the premise that she is engaged in private job in hotel and earning Rs. 6500/- per month but her certificate dated 07/04/2018 from the said hotel has been filed on behalf of the applicant, according to which petitioner was engaged in that hotel from June, 2016 to September, 2016 as daily wages and now she is not working with hotel. Respondent has not controverted the certificate by filing any document from the said hotel or nothing has been brought on record to indicate that she is engaged in some private job in other hotel or at other place. Certificate filed by the applicant prima-facie indicates that applicant was not engaged in regular job but she was working on daily wages and after September, 2016 she is not working. Thus, the conclusion of the Family court is not tenable that applicant is capable to maintain herself, particularly when she has responsibility to look after