IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.951 of 2007 SHVIDHANI PRASAD MEHTA Versus THE STATE OF BIHAR & ANR ----------- 4 25-09-2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the O.P. no.2. This revision has been preferred against the order dated 14.6.2007 passed by learned Additional Principal Judge, Family court, Patna in maintenance case no. 142 (M)/2005 by which he has allowed ad interim maintenance at the rate of Rs. 1000/- per month from the date of passing of the order along with litigation cost of Rs. 1000/- in lumpsum. It appears that O.P. no.2 Smt. Ahilya Devi filed a maintenance case u/s 125 of the Code of Criminal Procedure ( in short as Code) against her husband, the petitioner, Shivdhani Prasad Mehta with a prayer to direct him to give her maintenance of Rs. 5000/- per month along with litigation cost of Rs. 10,000/- in lumpsum. The case of wife/ opposite party no.2 was that her marriage was performed with Shivdhani Prasad Mehta in the year 1965. Two sons and one daughter were born to her. Her husband was in police service. He retired from service in the month of May, 2004 from the post of police Inspector. He received retiral benefit of Rs. 8 lacs approximately. Her further case was that marriage of her daughter has been performed but one of the son is still unmarried. Her further stand was that she has no source of income and she has been compelled to - 2 - do a private job in health line. Her husband is getting Rs. 8,000/- as pension. Her further case was that she has been completely neglected and her husband has refused to provide proper maintenance to her. It was also her case that her husband is indulged in adultery and living with other lady. He has illicit relationship with one Mira Devi. Petitioner/husband appeared in the maintenance case and filed show cause. He denied all the allegations. He took the stand that his wife is getting rent of Rs. 5,500/- from the two houses. He also stated that he had taken loan which was being adjusted from his salary. He is also suffering from various diseases. In short, the husband denied all the allegations of O. P. no. 2/wife. It has been contended on behalf of the petitioner that his wife is getting Rs. 5,500/- as rent from the two houses which is sufficient for her maintenance. It has further been contended that the court below in the impugned order has not given any finding whether the amount which the wife is getting by way of rent is sufficient for her maintenance. On the other hand learned counsel for the O. P. no.2 submitted that her husband has received Rs. 8 lacs by way of retiral benefit and same has been invested in various saving schemes from which he is getting a good amount in the shape of interest. Thus, now it is admitted position that wife is getting Rs. 5,500/- as rent from the two houses situated at Nawadah and Patna respectively. It further appears that learned court below while deciding the matter has not considered the wife’s income. There is nothing in - 3 - Section 125 of the Code to show that while determining maintenance and its rate the court has to inquire into the means of the husband alone and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in Section 125 (1) of the Code that the financial resources of the wife are also a relevant consideration in making such determination. Therefore, in determining the amount of ad interim maintenance u/s 125(1) of the Code the Magistrate or the court is quite competent to take into consideration the separate income and the means of the wife. There is no dispute that an adult son is not entitled to claim maintenance from his father if he is a physically fit person. In the aforesaid facts and circumstances, this application is allowed and impugned order dated 14.6.2007 is hereby set aside. The matter is remanded to the trial court to re-fix the amount of maintenance. In fixing the amount he shall together with other relevant circumstances take into account her income also. He shall afford opportunity to the parties to lead their evidence, if any, and then re-fix the amount of maintenance. BKS/ (M. Saran, J.)