1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Miscellaneous Petition No.568 of 2005. Kali Charan son of Shri Hazari Lal Gautam. VERSUS Smt. Puneet Gautam wife of Shri Kali Charan & Others Date of Order :::: 06/02/2009. Hon'ble Mr. Justice Bhanwaroo Khan Mr. D.G. Chaturvedi, Counsel for the Petitioner Mr. K.S. Chandel, Public Prosecutor for the State By the Court : The petitioner is the husband of respondent No.1-Smt. Puneet Gautam and father of respondent No.2-Master Umang @ Ishu, against whom a petition under Section 125 of the Cr.P.C. claiming maintenance was filed by the respondents. In the said petition, an interim order dated 03.05.2005 was passed by the Chief Judicial Magistrate, Bharatpur in favour of the respondents to give interim 2 maintenance allowance @ Rs.1500/- per month to the respondent No-1-wife and Rs.1000/- to the respondent No.2-her minor son. Against the said order, this criminal miscellaneous petition under Section 482 of the Cr.P.C. has been filed for quashing the same. By this Court on 01.06.2005 after hearing the learned counsel for the petitioner a modification was made in the order by reducing the amount of Rs.500/- and the order of the Lower Court granting maintenance to the respondent No.1 was stayed. Heard learned counsel for the petitioner and perused the impugned orders of the trial Court. No one appeared on behalf of the respondents, despite service of the notice. The learned counsel for the petitioner pleaded that the leaned Lower Court without taking into consideration the income of the petitioner and also the respondent no.1 has passed whimsical order and has directed to pay Rs.1500/- to the respondent No.1-wife and Rs.1000/- to the respondent No.2-minor son. While passing the interim maintenance, the order should be reasoned one and there must be some basis for fixing the interim maintenance allowance. There 3 is no dispute about the factum of marriage and minor son borne out of wedlock. The learned counsel for the petitioner further pleaded that the respondent-wife is working as para- teacher and the petitioner-husband is simply a daily wager, working in the Home Guard, getting Rs.85/- per day. Since, the petitioner himself is not able to earn more than what has been ordered to pay as an interim maintenance, it is not feasible and possible for him to pay the ordered amount to the respondent no.2-wife, who is a para-teacher, getting Rs.4000/- per month, as per the Certificate issued by the Senior Deputy District Education Officer-cum-Block Elementary Education Officer, Sewar, Bharatpur . The interim maintenance should be as per the income of both the parties. As per the Certificate issued by the District Commandant, Home Guards, Mathura, the petitioner is a daily wager and getting Rs.85/- per day as duty allowance and this amount is paid to him for the days only on which he attends the work. It is found that while passing the order dated 03.05.2005 the Chief Judicial Magistrate, Bharapur 4 observed that the respondent no.1-wife was earning Rs.1200/- per month. If the earnings of both the parties are compared, then it become clear that the husband is not a permanent employee and he is only a daily wager, and as on today, as per the Certificate, submitted by the learned counsel for the petitioner the respondent-wife is earning Rs.4000/- per month, but this aspect is not sufficient to discard the statutory rights of the respondent-wife and the minor son of the petitioner, who are otherwise entitled for claiming interim maintenance till the proceedings are in continuity. This is simply an interim order, if the petitioner is earning Rs.85/- per day, then his income per month, as per the calculation, comes out to be Rs.2210/- per month, so on the basis of this income an interim maintenance allowance can be fixed. The petitioner cannot be allowed to say that looking to his meager earnings no interim maintenance should be ordered against him. It is a right of the respondent-wife and more-so to his minor son to get an interim maintenance allowance from his father. Of course at the time of passing the order regarding interim maintenance, the income of the respondent-wife is one of the consideration while coming to a conclusion for interim 5 maintenance. At the relevant time, the income of the respondent-wife has been shown as Rs.1200/- per month. Having regard to the income of both the sides, the interim maintenance @ Rs.1500/- is a reasonable and justiciable for respondent No.2 and her son. The Lower Court without considering the income of both the parties has ordered to pay total interim maintenance of Rs.2500/-, which in prevailing circumstances of the case would not allow the petitioner- husband to pay the interim maintenance. The Lower Court has gone through the factual aspect of the matter and has fixed the exorbitant interim maintenance allowance, which is not sustainable in the light of the observations, made here-in-above, therefore, this miscellaneous petition deserves to be allowed. Consequently, this miscellaneous petition is allowed in part. The order dated 03.05.2005 passed by the Chief Judicial Magistrate, Bharatpur is modified to the extent that Rs.1000/- per month as interim maintenance is allowed to respondent No.1-wife and Rs.500/- to the respondent No.2-minor son, till the date of decision of the proceedings. The interim maintenance allowance be paid 6 from the date of order. The petitioner is to comply with the order passed by this Court for giving interim maintenance to the respondent No.2-wife and minor son. If any amount is deposited by the petitioner as interim maintenance that should be adjusted while deciding the final maintenance. (Bhanwaroo Khan) J. ashok/ 7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B.Criminal Miscellaneous Stay Application No.691/2005 IN S.B. Criminal Miscellaneous Petition No.568 of 2005. Kali Charan son of Shri Hazari Lal Gautam. VERSUS Smt. Puneet Gautam wife of Shri Kali Charan & Others Date of Order :::: 05/02/2009. Hon'ble Mr. Justice Bhanwaroo Khan Mr. D.G. Chaturvedi, Counsel for the Petitioner Mr. K.S. Chandel, Public Prosecutor for the State By the Court : Since the main petition itself has been allowed, the stay application is also disposed of. Bhanwaroo Khan