1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Rameshwarlal Sharma Vs. Smt. Sita Devi (S.B. Criminal Revision Petition No.1257/2010) S.B. Criminal Revision Petition Under Section 397 read with Section 401 Cr.P.C. Date of Judgment: December 01, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Lokesh Parihar, for the petitioner. BY THE COURT: Aggrieved by the order dated 3.7.2010, passed by the Additional Chief Judicial Magistrate No.3, Jaipur City, Jaipur and also aggrieved by the order dated 28.10.2010, passed by the Additional Session Judge (Fast Track) No.3, Jaipur City, Jaipur, the petitioner has approached this court. By the former order, the learned Magistrate had granted an interim maintenance of Rs.1200/- per month to the respondent. By the latter order the learned Judge has upheld the former order. The brief facts of the case are that on 12.06.2009, the respondent-wife filed a complaint against the petitioner under Section 12 of the Protection of Women from Domestic Violence Act 2005 ('the Act', for short) and sought relief on 2 the ground of cruelty, desertion, mental and physical harassment. The petitioner filed a detailed reply to the complaint and denied the averments made therein. After hearing both the parties, vide order dated 3.7.2010, the learned Magistrate had awarded an interim maintenance of Rs.1,200/- per month to the respondent. Against the order dated 3.7.2010, the petitioner filed an appeal before the learned Judge. However, vide order dated 28.10.2010, the learned Judge dismissed the appeal and confirmed the maintenance order. Hence, this petition before this Court. Mr. Lokesh Parihar, the learned counsel for the petitioner, has vehemently contended that the respondent is the defaulting party as she had left the matrimonial home of her own volition and had abandoned three children with the petitioner. Secondly, the respondent happens to be a lady of loose character, who is staying with another person. Thirdly, the petitioner has already filed a petition under Section 13 of the Hindu Marriage Act for seeking divorce from the respondent. Fourthly, since the petitioner himself does not earn much, he would find it difficult to pay a maintenance of Rs.1,200/- per month to the respondent. For, he is saddled with the responsibility of three children as well as his old parents. 3 Heard the learned counsel for the petitioner and perused the impugned orders. The respondent, in the complaint before the learned court, has levelled grave allegations against the petitioner that he had forced her to have physical relationship with other person from whom he was taking money. Therefore, prima facie she has given a cogent reason for staying away from him. Thus, merely filing of the divorce petition by the petitioner would not absolve him of his responsibility of having to maintain the respondent. Secondly, at the time of passing an interim order, the court is required merely to see whether prima facie case is made out or whether the balance of convenience and whether a, irrevocable loss would be caused to the respondent or not ? Since the respondent has given prima facie cogent reason for staying away from the matrimonial home, since she claims that she is unable to lift weight due to the medical advice as her back has suffered, and since she claims that she does not have any means of livelihood, the learned Magistrate was certainly justified in granting a maintenance of Rs.1,200/- per month to the respondent. 4 Merely because the petitioner claims that he is a poor person, merely because he claims that he is looking after his three children, it does not absolve him from his responsibility, both legally and morally, to maintain the respondent who happens to be his lawful wedded wife. Therefore, poverty is not a defence for non- payment of the interim maintenance. Lastly, the learned Magistrate has certainly justified in observing that the allegations made by the petitioner are subject to the evidence produced by him. Therefore, at the initial stage, the veracity and the validity of the evidence proposed by the petitioner cannot be accepted as the gospel truth. Thus, this Court does not find any illegality or perversity in the impugned orders. Hence, this petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki