1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Ugam Singh Vs. State of Raj. & another. SB CRIMINAL REVISION PETITION NO.723/2007. Under Section 397 read with Section 401 of the Code of Criminal Procedure. DATE OF ORDER: 29th August, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Sunit Awasthi for the petitioner. Mrs.Nirmala Sharma PP for the State. Mr. Devendra Raghav for the respondent. BY THE COURT: This revision petition under Section 397 read with section 401 Cr.P.C. has been filed against the order dated 29.6.2007 passed by the learned Additional Sessions Judge No.2, Ajmer in Criminal Appeal No.40/2007 (158/2007) whereby the appeal has been dismissed and the order passed by the learned trial court dated 17.5.2007 awarding maintenance to the non- petitioner @ Rs.2,500/- per month has been upheld. It is contended by the learned counsel for the petitioner that in the instant case the petitioner is a retired railway employee and is getting only Rs.5,000/- as pension. The amount of maintenance which has been awarded is at the excessive side, the same needs to be reduced. It is further contended that the fact of the matter is that the non-petitioner is not the married wife of the 2 petitioner and had only lived with the petitioner, therefore, legally she is not entitled to claim any maintenance. On the other hand, it has been submitted that three daughters were born out of their wedlock. It is also submitted that the daughters are married now, therefore, it is not correct to say that no marriage took place between the parties. It is also contended that from the pleadings of the parties that it is clear that the petitioner is having sufficient means of income and is getting pension of Rs.5,000/- per month, therefore, a sum of Rs.2,500/- per month which has been awarded by the learned trial court and in appeal the order of the learned trial court has been rightly up- held, the revision petition is liable to be dismissed. I have considered the submissions made before me. It is to be seen that before the learned trial court non- petitioner filed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short, 'the Act') with the averments that the non-petitioner is the wife of the petitioner and had lived with him for several years, out of their wedlock three daughters were born and ultimately she was thrown out of the house. In the reply to the application though it was not specifically stated by the petitioner that the non-petitioner is the legally wedded wife but it is stated that the non-petitioner had lived with the petitioner and the petitioner had spent money at the marriage and the non-petitioner gave birth to those daughters. The learned trial court after recording evidence of both the sides reached to the 3 conclusion that the non-petitioner having no sufficient source of income, awarded maintenance of Rs.2,500/- per month vide order dated 17.5.2007. The impugned order passed by the learned trial court was challenged before the learned appellate court which came to be decided by the learned appellate court on 29.6.2007 up-holding the order passed by the trial court. The contentions which are being raised now are liable to be rejected in view of the pleadings of the parties in para 2 of the reply to the application filed by the non-petitioner. The factum of non-petitioner lived with the petitioner has not been controverted. The factum of birth of three daughters took place when the non-petitioner was living with the petitioner had also not been controverted. In the evidence particularly of non-petitioner it has been stated by her that the petitioner was a retired railway employee and is getting pension of Rs.5,000/- per month and having agricultural land and other income. In the cross examination nothing has been asked from the witness in relation to his income by the non-petitioner. In the above circumstances, the only point which requires consideration in the present matter is, as to whether the amount of maintenance of Rs.2,500/- per month which has been awarded by the learned trial court is at the excessive side or needs to be reduced? It appears that the non-petitioner is above 60 years of age and the petitioner is getting pension of Rs.5,000/- per month 4 and in the over all circumstances of the case, it cannot be said that the amount of maintenance which has been awarded looking to the present time is at the higher side. I do not find any substance in the contention of the learned counsel for the petitioner that the non-petitioner is not entitled to claim maintenance or the amount of maintenance awarded by the learned trial court as upheld by the learned appellate court is at excessive side. In view of the fore-going discussion, the revision petition is liable to be dismissed and is hereby dismissed. (S.P. PATHAK,J)