IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No.44 of 2007 Indra Kumar Rai … Revisionist Versus Smt. Vimla Rai & another … Respondents Dated: March 5, 2009 Sri L.K. Tewari, Adv. for the revisionist Sri Bhuvnesh Joshi, Adv. for the respondents HON. DHARAM VEER, J. This criminal revision, preferred by the revisionist under Section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) r/w Section 19(4) of the Family Courts Act, 1984, is directed against the judgment and order dated 17.2.2007 passed by Principal Judge, Family Court, Dehradun in Case No.171/2005, Smt. Vimla Rai and another Vs. Indra Kumar Rai, by which the revisionist has been directed to pay Rs.750/- per month each to respondent nos.1 and 2, in total Rs.1,500/- per month, towards maintenance. 2. I have heard Sri L.K. Tewari, Adv. for the revisionist and Sri Bhuvnesh Joshi, Adv. for the respondents and perused the entire material available on record. 3. In brief, the facts of case are that Respondent No.1-Smt. Vimla Rai moved an application u/s 125 Cr.P.C. with the averments that she got married with the revisionist on 09.10.1989 as per Hindu RITES and out of the said wedlock, three children-Km. Tripti, Km. Richa and Master Rishabh (Respondent No.2) were born and respondent no.2 is residing along with her. On 13.6.2005, revisionist belaboured the respondent no.1 in the state of intoxication and in the night at 9 P.M., he ousted her from his house and since then she along with her son (respondent no.2) is residing separately from the revisionist. It was also stated by her that she is unable to maintain herself. It was further stated that the revisionist was retired as a Hawaldar from the Army from where he gets Rs.5,000/- per month as pension. Besides this he also work as a Private Guard from where also he gets Rs.5,000/- per month. Apart from it, the revisionist also owns a house and some land. With all these averments, an amount of Rs.5,000/- per month was sought as maintenance by respondent no.1 for maintenance against the revisionist. 4. The revisionist also appeared before the court below and filed his written statement. He admitted his marriage with respondent no.1 and also admitted that three children were born out of aforesaid wedlock. In his additional statement, he stated that on 3.3.2004, he caught respondent no.1 while doing adultery with one Monu @ Rajesh. On the same day i.e. on 3.3.2004 a compromise was also entered between the revisionist and respondent no.1 that she will not keep any relationship with Monu @ Rajesh in future. But on 13.6.2005 at 9:15 P.M., his wife-respondent no.1 along with Monu @ Rajesh had gone from the house of revisionist along with respondent no.2 and she also took some cash and jewellery along with her. 5. After hearing learned counsel for the parties and appreciating the material on record, the learned Principal Judge, Family Court, Dehradun vide his judgment and order dated 17.2.2007 directed the revisionist as above. Feeling aggrieved with the aforesaid judgment and order, the revisionist has come up in revision before this Court. 6. Sri L.K. Tewari, learned counsel for the revisionist has submitted that the respondent no.1-wife has gone from the house of revisionist as per her own will and she is not entitled to maintenance as she is living in adultery. He further submitted that the respondent no.1 also does work of Beauty Parlour and as such she is able to maintain herself. I find force in the argument raised by counsel for the revisionist as D.W.2 Km. Richa, who is the daughter of respondent no.1 and was examined by revisionist as defence witness, has stated in her evidence that her mother (respondent no.1) is not living along with her and her mother resides with Monu @ Rajesh. She further stated that when her mother was residing along with her, her mother was doing work of Beauty Parlor. She also stated that her mother (respondent no.1) also does the work of decorating the bride and earns sufficient money. She also stated that she never saw her father (revisionist) while taking liquor. She further stated that she also know Raju @ Monu, who was living in front of their house and he used to come at their house. She also stated that whenever he used to come, at that time her father was not at home and he used to come to meet her mother. She further stated that when Monu used to come in night, then he used to stay and sleep in the house along with her mother. Due to this reason, some quarrel also took place between her father and mother but her mother did not agree. On 13.6.2005 at 9:15 P.M., her mother had gone with Monu. In the above-said discussion, there is no ground to disbelieve the statement of D.W.2 Km. Richa Rai who is the daughter of respondent no.1. Even there is no reason that why she will give wrong evidence against her mother. Thus, it is proved that the respondent no.1 had gone from the house of revisionist as per her own will and the revisionist has not ignored her and as such she is not entitled to maintenance as she is living in adultery. 7. So far as the maintenance of respondent no.1-wife is concerned, she herself has admitted in her cross- examination in para 20 that she works at the house of Col. Ajay Pal Bora at Mall Road and she also resides over there. Further she gets Rs.500-600 and ration and she also admitted that she does not have to pay any rent. In view of this context also, it is proved that she is not entitled for any maintenance as she can easily maintain herself from the present source of income. 8. So far as the maintenance of respondent no.2-son is concerned, it is admitted between the parties that the revisionist is retired man from Army from where he gets about Rs.3,000/- per month. Besides this he also works as a Guard and from there also, he must be earning something. Thus, I am of the view that the maintenance of respondent no.2-son as directed by the court below for Rs.750/- per month is justified and there is no ground to interfere with the judgment and order passed by court below to this extent. 9. For the reasons as recorded above, the revision is partly allowed. The judgment and order dated 17.2.2007 passed by Principal Judge, Family Court, Dehradun in directing the revisionist to pay Rs.750/- per month for maintenance of respondent no.2-Master Rishabh only, is hereby affirmed. However, the amount of maintenance of Rs.750/- as awarded to respondent no.1-wife by the court below, is hereby set aside. Interim order dated 28.3.2007 passed by this Court is vacated. (Dharam Veer, J.) March 5, 2009 Rajeev Dang