1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Rakesh Vijay Vs. Rekha Vijay & Anr. (S.B. Criminal Revision Petition No.24/2010) S.B. Criminal Revision Petition Under Section 397 read with Section 401 Cr.P.C. Date of Judgment: December 08, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Mahesh Sharma, for the petitioner. BY THE COURT: Aggrieved by the order dated 7.10.2009, passed by the learned Judge, Family Court, Kota, whereby the learned Judge has granted a maintenance of Rs.500 to the respondent No.1, Smt. Rekha Vijay and Rs.1,000/- to the respondent No.2, Master Alok Vijay, the petitioner has approached this Court. Briefly the facts of the case are that the respondents had filed an application under Section 125 Cr.P.C. against the petitioner before the Family Court with the prayer to grant a maintenance of Rs.5,000/- per month. The petitioner submitted his reply and denied the allegations made by the respondents in the application. However, after hearing both the 2 parties, vide order dated 7.10.2009, the learned Judge allowed the application and granted a maintenance of Rs.500/- per month to the respondent No.1 and Rs.1,000/- per month to the respondent No.2. Hence, this petition before this Court. Mr. Mahesh Sharma, the learned counsel for the petitioner, has raised a single contention before this Court : the learned Judge has noticed the fact that the respondent No.1 happens to be working as a Lab Assistant in the Modi Public school and is earning Rs.3,557/- per month; the said amount is sufficient for the respondent to maintain herself and her son. Yet, he has still granted maintenance to her as mentioned above. Heard the learned counsel for the petitioner and perused the impugned order. The contention raised by the learned counsel is highly misplaced. Section 125 Cr.P.C. is as under : 125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or 3 (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means. Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance 4 and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. (2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. 5 (4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. According to Section 125 Cr.P.C., what is to be seen is the sufficient means of the person who is liable to maintain a wife or a child. Merely because, the wife happens to be earning an income, would not dis-entitle her in toto from claiming a maintenance. Although the point about her earning should be kept in mind, but her mere earning cannot dis-entitle her from claiming a maintenance. According to the learned counsel, the petitioner No.1 was earning Rs.3,557/- per month from the date when the certificate of her income was issued. Prior to that date she was earning merely Rs.2,300/- per month. Considering the rate of inflation, considering the fact that essential commodities have become expensive, considering the fact that the respondent No.1 is earning merely Rs.3,557/- per month, considering the fact that 6 she has to look after a child, the maintenance of Rs.500 to the respondent No.1 is most just and reasonable. According to the respondent No.1, she has to pay Rs.800/- per month as fees and Rs.400/- per month for incidental expenses for her child to go to the school. Therefore, a maintenance of Rs.1,000/- per month to the child is equally just and reasonable. Thus, the impugned order does not suffer from any perversity or legality. Hence, this petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki