Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION NO. 108 OF 2002 (Old no. 2184 of 2000) Vikram Singh Bhandari. ……… Revisionist Versus State and another. .……….Respondents Dated: October 22 , 2008 Sri Pankaj Purohit, learned counsel for the revisionist, Sri M.A. Khan, Brief Holder for the State/respondent no.1, HON. DHARAM VEER, J. This criminal revision, preferred under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 14.08.2000 passed by the learned Sessions Judge, Chamoli in Crl. Revision no. 88 of 1999 Smt. Bija Devi vs. State and another, whereby the learned Sessions Judge has set-aside the judgment and order dated 28.08.1999 passed by the Chief Judicial Magistrate, Chamoli in Misc. Case no. 42/1997 Vija Devi vs. Vikram Singh u/s 125 Cr.P.C. and awarded maintenance @ Rs. 500/- per month to the wife-respondent no.2 from the date of application. It is further directed that the amount of maintenance shall be paid in 1st week of every month. 2. None is present on behalf of the respondent no.2. Heard Sri Pankaj Purohit, learned counsel for the revisionist and Sri M.A. Khan, learned Brief Holder for the State/respondent no.1 and perused the record. 3. The facts of the case as emerge out from the record are that the respondent no.2 Smt. Bija Devi filed a petition u/s 125 Cr.P.C. against the revisionist before the Chief Judicial 2 Magistrate, Chamoli with the averments that she was married with the revisionist Vikram Singh in the month of June 1965. Her husband Vikram Singh was in Military service and was earning Rs. 6,000/- from the private service and from his pension. It is alleged that the revisionist remarried with one Smt. Rameshwari Devi. It is further alleged that after the second marriage the revisionist did not care for her and she was ousted from the house by the revisionist and his second wife. Since then she is residing at her parental home. It is submitted that after the death of her father she is now dependent on her brother, who is unable to maintain her. She prayed that maintenance allowance may be awarded against the revisionist, who has a monthly income of Rs. 6,000/- from pension and from private job. Besides it he owns other property and from all resources he earns a sum of Rs. 11,000/- per month. The revisionist filed his written objection. He admitted the marriage solemnized in the year 1965, but denied the income shown by the petitioner. It is pleaded that he was in Military service and after the marriage he at once went on duty without having marital relation with the petitioner. It is pleaded that the petitioner herself left his house without sufficient causes. He tried to persuade her, but for no avail. Both the parties led their oral and documentary evidence before the trial court. After hearing learned counsel for both the parties, the trial court vide order dated 28.08.1999 rejected the claim for maintenance. Aggrieved with this order, the petitioner Smt. Bija Devi preferred revision before the Sessions Judge, Chamoli and the learned Sessions Judge vide his impugned judgment and order dated 14.08.2000, has set-aside the judgment and order dated 28.08.1999 passed by the Chief Judicial Magistrate, Chamoli and awarded maintenance @ Rs. 500/- per month to the wife- respondent no.2 from the date of application. It is further directed that the amount of maintenance shall be paid in 1st 3 week of every month. Being aggrieved with this order the instant revision has been filed by the husband-revisionist. 4. The impugned order has been assailed on the ground that the learned Sessions Judge committed manifest error of law by wrongly appreciating the evidence as the wife-respondent no.2 is living separately and she had refused to live with the revisionist and she never claimed any maintenance. The Revisional Court ignored the documents paper no. 10-A/2 and 10-A/3, on the ground that they are not proved. Further the wife-respondent no.2 did not prove her case through cogent and reliable evidence, therefore the Revisional Court exceeded his jurisdiction in reaching to the findings of facts. It is contended that the Revisional Court cannot interfere in the finding of facts. Lastly; that the Revisional Court did not record the findings regarding the quantum of maintenance and means of income of the parties. 5. It is the admitted fact that Bija Devi-respondent no.2 is the legally wedded wife of the revisionist- Vikram Singh. Bija Devi is still not remarried. On the other hand the revisionist had remarried with another lady Smt. Rameshwari Devi and three children were born out of this second marriage. Therefore, the learned Sessions Judge had held that the first wife has the right to live separately and can claim separate maintenance and due to failure to maintain by the husband and negligence on his part, the wife-respondent no.2 is entitled to get the maintenance. It is further held that in-spite of remarriage with another lady, the first wife-respondent no.2 remained in the house of her husband-revisionist, but her husband ousted her from his house in year 1995, therefore she began to reside in her parental house. The wife-respondent no.2 proved her version through her oral and documentary evidence. A bare perusal of the judgment and order dated 14.08.2000 passed by the 4 Revisional Court shows that learned Sessions Judge has referred the paper nos. 10-A/2 and 10-A/3 in his judgment. Paper no. 10-A/2 is said to have been written by Bija Devi by which legal recourse of divorce is suggested. From the contents of this paper, it comes out that this letter is written in the compelling circumstances and it indicates that she was maltreated by the revisionist, therefore she had no other alternative except to live separately. The revisionist has also relied on the letter paper no. 10-A/3 and contended that this letter be treated as divorce. But the wife-respondent no.2 categorically declined execution of this paper no. 10-A/3, even the revisionist-husband did not produce any witness to prove its’ genuineness. Thus, so far the paper nos. 10-A/2 and 10-A/3 are concerned, both have although discussed in the judgment of the Revisional Court, but these papers could not have been taken into account in deciding the maintenance case as the paper no. 10-A/2 is simply suggests to take legal recourse of divorce and the paper no. 10-A/3 is not proved in the evidence and cannot be red in the evidence. The paper no. 10-A/2 rather indicates towards cruelty and maltreatment committed by the revisionist. 6. Learned counsel for the revisionist has argued that the name of the Bija Devi did not find figure in the Pariwar Register of the Panchayat, but it has come in the judgment of the learned Sessions Judge that the wife cannot be debarred from claiming maintenance, on the ground that she resides at her parental home and not in her husband’s house. From the above facts and circumstances and from the pleadings of the parties and the material available on the record, it is clear that the wife- respondent no.2 is the legally wedded wife of the revisionist. After 5 years of the marriage with the respondent no.2, the revisionist remarried with another woman without the consent of Bija Devi and the second wife began to live with the 5 revisionist in the same house and gave birth to children. Thus, Smt. Bija Devi was justified and had full right to live separately from the revisionist. It is the duty of the husband-revisionist to maintain her legally wedded wife-respondent no.2 Smt. Bija Devi, despite the fact that she was residing with her parents. It is averted by the revisionist that the wife is residing separately without sufficient reasons and she had never demanded any maintenance. But there is no evidence that the revisionist did care of her. He did not sent any money for her maintenance inspite sufficient earning from service, even he did not try to call her back. 7. It is stated that the wife-respondent did not want to live with the revisionist. But from the above discussions and from the evidence available on the records, it is proved that the wife respondent no.2 has sufficient causes to live separate from her husband as it revealed that the wife-respondent no.2 has not alternative except to leave the house of her husband due to the behaviour of the revisionist towards his wife and negligence on the part of the revisionist. Further, the court below considered that the revisionist is getting pension of Rs. 1,610/-. It is admitted by the revisionist that he owns two houses and is having 13 Nali agricultural land and after retirement he is in teaching job and getting salary of Rs. 3,000/- per month, Thus the revisionist is earning a sum of Rs. 4,627/- per month from pension and school salary and has sufficient agricultural land; while the respondent Bija Devi has no earning and she is residing at her father’s house. It is liability of the husband to maintain his wife. Accordingly, the trial Court has rightly held responsible the revisionist to pay a sum of Rs. 500/- per month as maintenance to his wife-respondent no.2, which is in the circumstances is correct and justified. I am of the view that the Revisional Court has not committed any mistake while setting- aside the order of the trial court and awarding maintenance to 6 the wife-respondent no.2, as the Revisional Court has appreciated the evidence in the revision while exercising its powers vested on it. The learned Sessions Judge has also appreciated the evidence as per the law, thus the judgment and order passed by the learned Sessions Judge, is correct and is based on the appreciation of the evidence, which does not warrant interference at this stage. I do not find any illegality, impropriety or incorrectness in the impugned order dated 14.08.2000 passed by the Sessions Judge, Chamoli. The revision is devoid of merits and is liable to be dismissed. 8. Accordingly, the revision is dismissed. (Dharam Veer, J.) 22.10.2008 NCM: