IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1175 of 2007 SANTOSH BHARTI Versus THE STATE OF BIHAR & ANR ----------- 8 18.4.2009 No one appeared for the Opposite party no.2 on 17.4.2009. Today also no one appears for the Opposite party no.2 though counsel for the petitioner is present. The instant revision application is directed against the order dated 16.7.2007 passed by the Principal Judge, Family Court, Patna in Maintenance Case No.35(M) of 2002 by which the learned Judge has directed the petitioner to pay a sum of Rs.2,000/- as maintenance to Opposite party from the date of the order. Learned counsel for the petitioner submits that the learned trial court erred in directing him to pay a maintenance of Rs.2,000/- per month ignoring two vital circumstances, firstly a bench of this court by order dated 7.3.2002 passed in Cr.Misc.No.30598 of 2001 while granting anticipatory bail has directed the petitioner to pay a sum of Rs.1,000/- per month as maintenance to the complainant (Opposite party no.2). Secondly, the trial court has observed in paragraph 11 that the Opposite party has joined as school teacher in a government school and is getting salary. He submits that the petitioner is paying maintenance as directed by this court. In support of his contention, learned counsel has filed a salary receipt dated 19.2.2007 from which it appears that the Opposite party gets her salary of Rs.5,000/- per month. He further submits that as per 2 section 125(1)(a) Cr.P.C., a wife who is unable to maintain herself is only entitled to maintenance. He further submits that as the Opposite party who is receiving salary of Rs.5,000/- per month is not entitled to any maintenance. In this respect, he relied upon a decision of Hon’ble Apex Court in the case Bhagwan Dutt vs Smt. Kamla Devi and another, A.I.R. 1975 SC 83. The submission of learned counsel for the petitioner does seem impressive at first instance; but it cannot be lost sight of, that a wife cannot be debarred from claiming maintenance merely because she is in service. If the salary or remuneration received by her is not sufficient to meet minimum standard of life that she has been used to, she would be entitled to claim maintenance additionally. What is relevant is that the Magistrate while determining the quantum of maintenance should take into account the separate income of the wife as well as financial capability of the husband. The Apex Court in Bhagwan Singh (Supra) held that in determining the amount of maintenance the Magistrate would be competent to take into consideration the separate income and means of wife. The Apex Court further held that the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also is taken into account together with the earnings of the husband and his commitments. 3 KHAN In the instant case, though the Family Court in paragraph 11 has noted that Opposite party has been employed as teacher in Government school, still the learned Principal Judge has not made any enquiry in respect of the salary she is receiving from government or from her employer. Thus the learned court has erred in not taking into consideration the aforesaid aspect which was necessary before finally deciding the quantum of maintenance to be granted to the wife. In this circumstances, this court finds that the amount of Rs.2000/- fixed as maintenance is excessive in absence of any evidence in respect of standard of living that Opposite party has been used to. As such this court reduces the amount of maintenance to Rs.1,000/- from Rs.2,000/- per month. The petitioner would continue to pay a sum of Rs.1,000/- as maintenance as directed by this court in Cr.Misc.No. 30598 of 2001, till she does not incur any disability under section 125 Cr.P.C. With the aforesaid modification in the quantum of maintenance, this application is allowed. (S.P.Singh,J)