IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 47 of 2009 Decided on : 15.9. 2009. Ajay Kumar …Petitioner. Versus Smt. Sumna Devi ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. A.K. Vashista, Advocate. For the Respondent : None. __________________________________________________________ Kuldip Singh, Judge (Oral ) This petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India has been filed for setting aside order dated 24.1.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Hamirpur in Criminal Revision No. 3 of 2008 and order dated 28.12.2007 passed by the learned Judicial Magistrate, 1st Class, Court No.2, Hamirpur in petition No. 5 of 2005. 2. The facts in brief are that respondent had filed petition under Section 125 Cr.P.C. against the petitioner claiming maintenance Rs.2500/- per month on the ground that parties were married on 11.5.2005, the petitioner soon after the marriage started maltreating and harassing the respondent and turned her out from the matrimonial home. The petitioner neglected and refused to 2 maintain the respondent without reasonable cause, a case under Section 498-A IPC has been filed against the petitioner. The respondent has no source of income whereas the petitioner is doing private job and the income of the respondent from all sources is about Rs.10,000/- and he can easily spare Rs.2500/- per month for making payment to respondent. 3. The petition was contested by the petitioner and pleaded that he was not in a position to earn anything and prayed for dismissal of the petition. The learned Judicial Magistrate on 28.12.2007 allowed maintenance at the rate of Rs.700/- per month to the respondent from the date of order. The order dated 28.12.2007 was assailed by the petitioner by way of revision in the Court of learned Additional Sessions Judge, Fast Track Court, Hamirpur and the same was affirmed on 24.1.2009. The petitioner has now assailed the orders dated 24.1.2009 and 28.12.2007 by way of present petition. 4. The learned counsel for the petitioner has submitted that petitioner is not in a position to earn anything as petitioner is suffering from schizophrenia and is under treatment. The petitioner appeared as his own witness in the trial Court as RW- 1. He has stated that he is doing no work and is patient of mental depression and is under treatment at Mental Hospital, Shimla. In cross-examination, he has stated that he works on daily wages. He has worked in a café and was earning Rs.1500/- per month salary. RW-2 Dr. R.S. Dhatwalia has stated that in August, 2007 he was working as Joint Director of Health Services with additional charge of 3 State Mental Hospital, Shimla. On 1.8.2007 Ajay Kumar was admitted in the mental hospital with diagnosis of schizophrenia and was discharged on 21.8.2007 vide discharge slip Ex.RW-2/A. In cross-examination, he has stated that the patient is not under his treatment. There is nothing in the statement of RW-2 that petitioner is not in a position to earn. 5. The order dated 28.12.2007 of the trial Magistrate was challenged in revision, but during the pendency of the revision petition, no step was taken by the petitioner to place on record any material to show his condition of health when the revision was pending. The present petition has been filed by the petitioner at his own. This indicates that the petitioner is in perfect state of mental health. It has come in the statement of respondent that parties have one child also. It is not the case of the petitioner that he is looking after that child. The maintenance at the rate of Rs.700/- per month awarded by the learned trial Magistrate and affirmed in revision in the present context is not on the higher side.. The learned counsel for the petitioner has failed to make out any case to point any error of jurisdiction committed by the two courts below. Resultantly, the petition fails and is dismissed. September 15, 2009. ( Kuldip Singh ), (GR) Judge.