1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Arvind V/s. Smt. Santosh S.B. Criminal Revision Petition No.1302/2010 S.B. Criminal Revision Petition Under Section 397 and 401of the Code of Criminal Procedure Date of Order :: December 10, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Pankaj Gupta for the petitioner. Surprisingly, the petitioner has challenged the order dated 26.10.2010 passed by the Additional District & Sessions Judge, No.2, Jaipur City, Jaipur, whereby the learned Judge had partly allowed the appeal submitted by the petitioner and had modified the order dated 18.08.2010. Yet, he has still approached this Court. The brief facts of the case are that the petitioner and non-petitioner were married on 18.04.2006. Out of wedlock, a daughter, Harshita, was born. But, after some time, differences arose between the parties; the respondent lodged a FIR, FIR No.163/2009 against the petitioner, which was registered under Sections 498A and 406 IPC. The non-petitioner also lodged a complaint under Section 12 of the Protection of Women From Domestic 2 Violence Act. The learned Judge, after hearing both the parties, awarded a maintenance of Rs.5,000/- to the non- petitioner and Rs.2,500/- to Kumari Harshita vide order dated 18.09.2010. Against the order dated 18.08.2010, the petitioner preferred an appeal before the learned Appellate Court, who partly allowed the appeal and modified maintenance amount to the tune of Rs.5,500/- vide order dated 26.10.2010. Hence, this petition before this Court. The learned counsel for the petitioner has vehemently contended that since the petitioner has lost his job, he is not in a position to maintain his wife and child. Therefore, even if the maintenance amount has been reduced from Rs.7,500/- to Rs.5,500/-, considering his unemployment, the amount of maintenance, is still high. He is unable to pay the same. Therefore, the order dated 26.10.2010 deserves to be set aside. Secondly, respondent herself is an educated lady, who is capable of having a job. Moreover, even in the year 2004, she was employed. Thus, she has the capacity of earning livelihood of her own. Therefore, the petitioner should not be saddled with the liability to maintain the wife and the child. 3 Heard the learned counsel for the petitioner and perused the impugned order. Section 12 read with Section 23 of the Act empowers the Magistrate to grant interim relief of maintenance to the aggrieved party. Neither of these sections contain an exception that in case the husband is unemployed, he is not liable to maintain the wife. Therefore, merely because the petitioner happens to be unemployed, the contention that he is unable to maintain respondent, cannot be accepted. Moreover, even if he is unemployed, it does not preclude him from gaining employment. Therefore, the unemployment cannot be used as an excuse to deprive the wife and the child of their maintenance. Both under the law and morality, it is the duty of the husband to maintain the wife and the child. Therefore, the petitioner is duty bound to maintain his wife and child. There is another way of looking at the scenario, in case the wife and child were living with the petitioner, and even if he were unemployed, he would have still maintained them. Thus, merely because the husband and wife are not living together, it does not strengthen the case of the petitioner that he is not liable to maintain them. The factum of separation cannot dilute his duty to 4 maintain the respondent and the child. The learned Judge has also considered the fact that the petitioner was earning. Despite the fact that he was earning, the learned Judge has thought that an amount of Rs.7,500/- is too much for the petitioner. Therefore, the learned Judge had reduced the maintenance amount from Rs.7,500/- to Rs.5,500/-. Despite the fact that the order is still in favour of the petitioner, the petitioner has still decided to approach this Court. But, this Court sees neither any illegality, nor perversity in the impugned order. Hence, this petition is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-