Category Archives: NO maintenance to deserting wife

Husband’s earning NOT only reason for alimony. Conduct of parties to be seen. NO alimony to wife, Andhra HC

Andhra HC rejects grant of alimony to wife even though the husband is earning more than her. Her abominable conduct, hiding material facts and sufficient current earnings dis-entitle her from alimony, the court decrees

“….Having regard to the aforesaid aspects, it is to be held in this case that the conduct of the petitioner-wife is abominable and, therefore, she is not entitled to claim any amount towards permanent alimony from the respondent-husband. A spouse claiming permanent alimony must come forward by disclosing all necessary facts, with regard to her income, properties etc., in the petition filed. In this case, petitioner-wife has suppressed material facts with regard to her investments in shares and mutual funds. When the same was confronted to her in the cross-examination, she categorically admitted the same. In addition to her disentitlement having regard to her conduct, further, it is to be noted that the petitioner-wife is having sufficient income as a medical practitioner, working as freelance consultant and in view of shares and debentures held by her apart from LIC policies and other assets, we are of the view that she is not entitled for any amount towards permanent alimony from the respondent-husband….”

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HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR NARAYANA           

FAMILY COURT APPEAL No.152 of 2007      

05-09-2014

Dr.Aneel Kaur…APPELLANT   

Dr.Jaya ChandraRESPONDENT       

Counsel for appellant: Ms. S. Vani

Counsel for respondent.: Sri M.R. Harsha

1997 (2) APLJ 103

HONBLE SRI JUSTICE R. SUBHASH REDDY AND HONBLE SRI JUSTICE A. SHANKAR NARAYANA

FAMILY COURT APPEAL No.152 of 2007 and CROSS-OBJECTIONS (Sr.) No.29318 of 2008

COMMON JUDGMENT: (Per Justice R. Subhash Reddy)

  1. The Civil Miscellaneous Appeal, in F.C.A.No.152 of 2007 is filed under Section 19 of the Family Courts Act, 1984 by the petitioner in I.A.No.664 of 2006 in F.C.O.P.No.260 of 1997, aggrieved by the order dated 07.09.2007 passed by the Family Court, Hyderabad.
  2. For the purpose of disposal, we refer to the parties as arrayed before the Family Court.
  3. By the aforesaid order, the Family Court allowed the petition filed by the petitioner under Section 25 of the Hindu Marriage Act, 1955, seeking permanent alimony of Rs.1 crore, in part, and directed the respondent to pay an amount of Rs.15 lakhs within a period of six months from the date of the order, with 9% interest thereafter. This appeal is filed by the petitioner seeking enhancement of the permanent alimony from Rs.15 lakhs to Rs.1 crore and cross-objections are filed by the respondent questioning the order of the Family Court, granting Rs.15 lakhs towards permanent alimony.
  4. Earlier, there was dispute between the parties on the application filed by the respondent for grant of divorce. Ultimately, in Civil Appeal Nos.7763 and 7764 of 2004, the Honble Supreme Court, by order dated 02.12.2004, ordered for dissolution of marriage between the petitioner and the respondent and for grant of decree of divorce, in favour of the respondent. In the year 1997, respondent herein filed O.P.No.260 of 1997 on the file of the Family Court, Hyderabad, seeking divorce. The said O.P. was disposed of on 19.02.2001, granting judicial separation. As against the same, the respondent filed C.M.A.No.2366 of 2001 and the petitioner filed C.M.A.No.2124 of 2001 before this Court and by common order dated 27.09.2002, this Court allowed the C.M.A., filed by the petitioner and dismissed the C.M.A., filed by the respondent. As against the common order in both the C.M.As., appeals were filed before the Honble Supreme Court and the Honble Supreme Court has ordered for dissolution of marriage and for grant of decree of divorce as sought by the respondent.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  5. Subsequent to disposal of the appeals by the Honble Supreme Court, I.A.No.664 of 2006 is filed by the petitioner before the Family Court, Hyderabad under Section 25 of the Act seeking permanent alimony of Rs.1 crore.
  6. The petitioner is a Doctor by profession. She initially joined on salary basis in the hospital owned by the father of the respondent. It is her case that after her joining the hospital, herself and the respondent started A.K.J. Medical Services as partnership firm and developed the same. It is alleged that, now, the respondent is encashing on the reputation of the said clinic by styling the same as A.K.J. Chest Clinic, and the petitioner is deprived of her income and financial security. It is further alleged that though the said firm is dissolved, accounts have not been settled. It is also alleged that she had spent the best of her life for the family and family concern, but she is deprived of fruits of her hardwork. Further, pleading that respondent owns properties worth Rs.5 crores, whereas the properties owned by her are worth about Rs.55.00 lakhs and the annual income of the respondent is Rs.25.00 lakhs, whereas her annual income is about Rs.4.00 to 5.00 lakhs, she prayed for grant of permanent alimony of Rs.1 crore.
  7. The respondent filed counter before the Family Court. In the counter, while admitting grant of divorce by the Honble Supreme Court, the following averments are made: Petitioner is attached to various hospitals like Sai Vani and Care Hospital and as she is in possession of several properties, she is not entitled for any permanent alimony. Petitioner is earning well. Her properties are worth about Rs.3 crores. She purchased a brand new car and has got lot of savings. She gave 40 lilies on his 40th birthday. Lilies are given on the death of a person, more so on a sad demise, while roses are given as a sign of happiness. She also purchased Getz car and both her cars cost about Rs.4.00 and 6.00 lakhs each and further she purchased lab equipment. In the application seeking maintenance, she claimed Rs.18,000/- per month by producing fictitious accounts. In the earlier proceedings, she admitted that since 1997, she has been receiving money as consultant and she is in a position to manage herself independently. He and the petitioner are blessed with a son and a daughter. The entire cost of education, maintenance and day-to-day expenses of the children are being taken care by him right from their birth till date. Petitioner owns a plot which is worth about Rs.3 crores, situated in Jubilee Hills, which, in fact, is purchased by him in the name of the petitioner. It is further pleaded that, petitioner is having D-Mat account and suppressed her investments in mutual funds.
  8. With the aforesaid averments, respondent prayed for dismissal of the application filed by the petitioner.
  9. Before the Family Court, petitioner got herself examined as P.W.1 and on her behalf Exs.P.1 to P.29 were marked. Respondent got himself examined as R.W.1 and on his behalf, Exs.R.1 to R.10 were marked.
  10. The Family Court, having considered the oral and documentary evidence on record, has recorded a finding that both the petitioner as well as the respondent are earning and are having their own source of income as they are Doctors by profession. By recording a finding that the respondent, who is the former husband of the petitioner-P.W.1, is placed in a better position and his income is more than that of the income of the petitioner, the Family court awarded Rs.15 lakhs as permanent alimony.
  11. Heard Sri D. Prakash Reddy, learned senior counsel, assisted by Smt.S.Vani, for the petitioner-wife and Sri M.R. Harsha, learned counsel for the respondent-husband.
  12. The following submissions are made by the learned counsel for the petitioner: The Family Court restricted permanent alimony to Rs.15 lakhs as against the claim of Rs.1 crore, without assigning valid reasons. Petitioner started her practice as Doctor at Dr. Rama Murthy hospital initially on salary basis and in the year 1981-82, Dr. Rama Murthy, who is the father-in-law of the petitioner and father of the respondent, handed over the hospital to the petitioner and the respondent and they have entered into partnership and started running the same as a Partnership Firm in the name and style of A.K.J. Medical Services. Petitioner worked tirelessly for development of the hospital and during subsistence of partnership, petitioner, along with the respondent, expanded the hospital and opened in-patient block by adding rooms and equipped the hospital with labour room, operation theatre, etc. Petitioner is responsible for development and reputation of the hospital, but now the respondent enchased the same by styling the hospital as A.K.J. Chest Clinic and has not settled the share of the petitioner in the assets. Though the petitioner has filed I.T. returns under Exs.P.23, 24 and 25, respondent has not filed I.T. returns showing his income. The income of the petitioner is not more than Rs.5 lakhs per annum, whereas the respondent, who is having the benefit of the hospital, is earning more than Rs.25 lakhs per annum and as much as their marriage was already dissolved pursuant to the orders of the Honble Supreme Court, petitioner is entitled for permanent alimony at least not less than Rs.50 lakhs.
  13. On the other hand, it is submitted by Sri M.R. Harsha, learned counsel for the respondent-husband as under: Petitioner is well-off and is a consulting physician in number of hospitals and is having her own income which is self-sufficient to maintain herself and, further, having regard to the conduct of the petitioner, she is not entitled for any alimony. In view of Section 25 of the Family Courts Act, 1955, all the factors, viz., conduct etc., are to be taken into consideration, while considering a petition for grant of permanent alimony. Petitioner has ill-treated the respondent, who is her husband and made several allegations affecting his reputation, character and the same amounts to cruelty as held by the Honble Supreme Court. Respondent has taken care of entire expenses of the children and the petitioner has approached the Family Court by suppressing material facts with regard to her savings and the investments made by her in stocks etc., and that itself is sufficient to set aside the order of the Family Court, granting maintenance of Rs.15 lakhs towards permanent alimony. As the petitioner has not come with clean hands and, further, in view of her conduct, which is held to be cruel and also in view of suppression of material facts in the petition filed by her before the Family Court, the appeal filed by her is to be dismissed, by setting aside the order of the Family Court granting Rs.15 lakhs towards permanent alimony and by allowing the cross-objections filed by the respondent.
  14. Having heard the learned counsel parties at length, we have carefully perused the material on record.
  15. Under Section 25 of the Hindu Marriage Act, 1955, any Court exercising jurisdiction under the Act, at the time of passing of the decree or at any time subsequent thereto, is empowered to order maintenance to the applicant having regard to the applicants income and other property, further having regard to the income and other property of the respondent and also conduct of the parties and other circumstances of the case.
  16. The petitioner and the respondent were married on 10.10.1978 and were blessed with two children who are now majors. They belong to different religions. The petitioner-wife is a Sikh, whereas the respondent-husband is a Telugu Brahmin. As evident from the orders passed by the Honble Supreme Court, they were working in the hospital established by the father of the respondent Dr. A. Rama Murthy. The respondent-husband initially filed petition for decree of divorce on the ground that petitioner-wife ill-treated him not only at home but also in the hospital and caused mental agony and as a result he suffered personally and professionally. He alleged that the petitioner made serious allegations against his character. In the O.P., filed by the respondent-husband seeking decree of divorce, the Family court has granted decree for judicial separation. As against the same, appeals were filed before this Court. The appeal filed by the wife was allowed, while the appeal filed by the husband, was dismissed. As against the common order in the appeals, matters were carried before the Honble Supreme Court vide Civil Appeal Nos.7763 and 7764 of 2004. The Honble Supreme Court directed for grant of decree of divorce by judgment dated 02.12.2004, in which it is held as under: The evidence as led and which is practically undisputed is that the respondent had asked the husband to do certain things which cannot be termed to be a simple advice for proper behaviour. For example in her evidence respondent clearly accepted that she had said five things to be followed by him. Surprisingly, most of them related to ladies working in the hospital. Though respondent tried to show that they were simple and harmless advice, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. By way of illustration, it may be indicated that the first so called advice was not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Second was not to work behind the closed doors with certain members of the staff. Contrary to what she had stated about having full faith in her husband, the so called advices were nothing but casting doubt on the reputation, character and fidelity of her husband. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. The respondent was not an ordinary woman. She was a doctor in the hospital and knew the importance of the nature of duty and the necessity of members of the staff working even during off-hours and the working conditions. There was another instance which was specifically dealt with by the trial Court. Same related to the alleged extra-marital relationships of the appellant with another married lady who was wife of his friend. Though the respondent tried to explain that she was not responsible for making any such aspersions, the inevitable conclusion is to the contrary.
  17. The Honble Supreme Court has also taken note of the events which are subsequent to filing of the petition seeking divorce. Subsequent to filing of the petition for divorce, petitioner-wife has filed a suit for injunction in which she went to the extent of seeking detention of the respondent-husband, alleging that he has violated the orders of injunction. Thus, ultimately, on the ground of cruelty, marriage between the petitioner and the respondent was dissolved.
  18. From the evidence on record, it is clear that petitioner, P.W.1, is a gynaecologist and respondent, R.W.1 is a chest-specialist. Both are earning from their profession and their children have become majors. Admittedly, daughter is independent and earning and son is with the respondent-husband. It is also not in dispute that all the expenditure relating to children was borne by the respondent-husband. It is the case of the petitioner-wife that respondent owns properties worth Rs.5 crore, whereas she owns properties worth Rs.5 lakhs. It is also alleged that annual income of the respondent-husband is Rs.25 lakhs and her annual income is Rs.4-5 lakhs. She was cross-examined at length and in the cross-examination, petitioner as P.W.1 admitted that from the last 18 years she has been an income tax assessee and she was visiting Sai Vani and Care hospitals, as freelance consultant and whenever she visited those hospitals, she used to charge consulting fee and if she attended to any operation or delivery, she used to charge separate fee and she was also attached to CDR hospital as a consultant. In the cross-examination, she specifically admitted that she is holding some shares and debentures and the same are not disclosed in the petition filed by her seeking maintenance. As per Ex.R.1 statement, it is clear that petitioner-wife invested in shares in Karvy Consultants Ltd. worth Rs.13,64,000/- in the year 2004 and as per R.2 statement, she is having deposits in Kotak Securities worth Rs.6.06 lakhs. She has got D-MAT accounts which are evident from Exs.R.1 and R.2. She has also admitted that she has invested in mutual funds and also holds LIC policies worth Rs.5 lakhs. Apart from the same, it is the specific case of the respondent-husband that the plot which is in possession of the petitioner-wife in Jubilee Hills is worth about Rs.4 crores now and though she pleaded that some portion of the said plot is in dispute, there is no dispute with regard to major extent of the plot. In the Land Grabbing Case filed by her with regard to the said plot, she herself has shown the value of the same as more than Rs.48 lakhs. There is no explanation at all for suppression of material facts with regard to investments made by her in shares, mutual funds etc. It is also the specific case of the respondent- husband that petitioner is absolutely cruel both in heart and mind and she has no human values. In his deposition as R.W.1, respondent- husband has categorically stated that the petitioner has filed O.S.No.89 of 1997 for perpetual injunction on 26.06.1997 and filed application for interim injunction vide I.A.No.530 of 1997 and the suit was disposed of, on undertaking given by him that he will not interfere with the petitioner to her practice as Doctor since she was then still his wife. In spite of the same, she filed E.P.No.31 of 1998 therein, seeking his detention. In his deposition, respondent-husband, while denying various allegations made by the petitioner-wife with regard to her contribution in the development of the hospital, further while attributing cruelty on the part of the petitioner, specifically pleaded that petitioner gave 40 lilies on his 40th birthday. It is specifically pleaded that lilies are given on the death of a person or to mourn a sad demise. Though respondent-husband was cross- examined at length, nothing adverse was elicited with regard to the aforesaid allegations. From a perusal of the order of the Family Court, it appears that Rs.15 lakhs is awarded as permanent alimony to the petitioner-wife only on the ground that the respondent-husband is placed in a better position and his income is more than that of the petitioner-wife. In this regard, we are of the view that the Family Court has lost sight of various other aspects as contemplated under Section 25 of the Hindu Marriage Act, 1955, while considering the O.P., filed under Section 25 of the Act. From a plain reading of the said provision, it is clear that Courts are obligated to take note of the conduct of the parties and other circumstances of the case, while granting permanent alimony. The mere fact, that respondent is in a better position and is earning more compared to that of the petitioner, by itself, is not a ground for grant of permanent alimony.
  19. In the case of N. Varalakshmi v. N.V. Hanumantha Rao , the Honble Supreme Court has held that, even after decree of divorce, permanent alimony can be granted to the spouse, who applies for it unless conduct of the spouse is abominable. Whether the conduct of the spouse is abominable or not is a matter which depends on the facts of each case. While considering, whether the conduct of the petitioner-wife is abominable or not, it is necessary to examine the allegations of cruelty and inhuman conduct on the part of the petitioner-wife, as alleged by the respondent-husband. In the judgment in Civil Appeal Nos.7763 and 7764 of 2004, the Honble Supreme Court has observed certain advices made by the petitioner-wife to the respondent and held that they relate to ladies working in the hospital. It was further held that though the petitioner-wife tried to show that they were simple and harmless advices, yet on a bare reading thereof it is clear that there were clear manifestations of her suspecting the husbands fidelity, character and reputation. It was also held that there was an allegation of extra-martial relation of the respondent with another married lady who was the wife of his friend. Such allegations were held to be cruel and ultimately the Honble Supreme Court has passed orders for grant of decree of divorce in favour of the respondent-husband. It is also not in dispute that after filing of the suit, petitioner-wife went to the extent of filing petition to detain the respondent-husband in civil prison. Further, the specific allegation of the respondent-husband that petitioner-wife presented 40 lilies on his 40th birthday, requires serious consideration. It is the specific case of the respondent-husband that presentation of lilies is made only on the death of a person, more so on a sad demise. It is specifically pleaded by the respondent-husband that the petitioner is absolutely cruel both in heart and mind and has no human values. As the same was not denied and nothing adverse was elicited in the cross-examination of the respondent as P.W.1, even such instances need to be taken note of, while assessing, whether the conduct of the petitioner-wife is abominable or not. A perusal of the evidence also makes it clear that petitioner-wife has no other expenses except for her maintenance. At the same time, she is also working as consultant Doctor in several hospitals and making her own income which is self-sufficient. The Family Court has not recorded any valid reasons for awarding a sum of Rs.15 lakhs as permanent alimony to the petitioner-wife.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  20. Having regard to the aforesaid aspects, it is to be held in this case that the conduct of the petitioner-wife is abominable and, therefore, she is not entitled to claim any amount towards permanent alimony from the respondent-husband. A spouse claiming permanent alimony must come forward by disclosing all necessary facts, with regard to her income, properties etc., in the petition filed. In this case, petitioner-wife has suppressed material facts with regard to her investments in shares and mutual funds. When the same was confronted to her in the cross-examination, she categorically admitted the same. In addition to her disentitlement having regard to her conduct, further, it is to be noted that the petitioner-wife is having sufficient income as a medical practitioner, working as freelance consultant and in view of shares and debentures held by her apart from LIC policies and other assets, we are of the view that she is not entitled for any amount towards permanent alimony from the respondent-husband.
  21. For the aforesaid reasons, we are of the view that the impugned order of the Family Court granting Rs.15 lakhs as permanent alimony to the petitioner-wife is fit to be set aside, by allowing the cross-objections preferred by the respondent-husband.
  22. Accordingly, F.C.A.No.152 of 2007 is dismissed and Cross-Objections (Sr.) No.29318 of 2008 are allowed, setting aside the order dated 07.09.2007 passed by the Family Court, Hyderabad in I.A.No.664 of 2006 in F.C.O.P.No.260 of 1997. As a sequel, miscellaneous petitions if any pending stand disposed of. No order as to costs.

R. SUBHASH REDDY, J

A. SHANKAR NARAYANA, J

September, 2014

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No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! Rajastan HC

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. Rajastan HC

A deserting wife claims maintenance alleging beatings, dowry torture etc. The learner Magistrate disallows her claims based on evidence and facts. On appeal the learned sessoions court allows maintenance to the wife. Hon Raj HC appreciate the facts and decrees “… The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice….” and refuses to grant her any maintenance. Only children get maintenance

The HC also confirms that “…In revisional jurisdiction, Court cannot be justified in reappraising evidence and come to its own conclusion when it is not shown that Magistrate omitted to consider some vital evidence or had misread evidence. Learned Addl. Sessions Judge obviously exceeded jurisdiction in reversing finding of fact recorded by Magistrate, without cogent reasons. ….”


Rajasthan High Court

Bheekha Ram vs Goma Devi And Ors. on 22 January, 1999

Equivalent citations: I (2000) DMC 76, 1999 WLC Raj UC 260

Author: G Gupta

Bench: G Gupta

ORDER

G.L. Gupta, J.

  1. This revision by the husband has been preferred against the revisional order dated 17.3.1997 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner where he set aside the order dated 22.4.1995 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondent Nos. 1 to 2.
  2. The short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under Section 125, Cr. P.C. against her husband-Bheekha Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheekha Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated the Bheekha Ram earned Rs. 60/- per day by doing mason work. It was prayed that she be allowed maintenance @ 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.
  3. Goma Devi entered into the witness box and examined A.W.1. Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined. N.A.W. 2 Kaluram, N.A.W. 3 Modaram and N.A.W. 4 Sampatram. After hearing the Counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegation of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against the order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.
  4. Mr. S.D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bona v. Sher Mohammed, 1990 RCC 57; Bhanwari Bat v. Mohd. Ishaq, 1984 MLR 234; Budharam Kosta v. Pitarbai, 1984 MLR 62; and Raghbir Singh v. Krishna, 1982 MLR 307.
  5. On the other hand, Mr. G.K. Vyas urged that this Court should not interfere in the revisional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.
  6. I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned Counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reapreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a Revisional Court is not as that of Appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entered by the Trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revision power, the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bound of its jurisdiction including the question whether the Court had failed to exercise the jurisdiction vested in it: vide Associated Cement v. Keshvanand, AIR 1998 SC 596=II (1998) SLT 26 (SC).
  7. In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that on her own admission she was living in the house constructed by her husband. On the admission of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Distt. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under Section 125, Cr. P.C.
  8. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife.
  9. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice.
    10. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is fault of the children when they are living with their mother. The father is bound to provide maintenance to them.
  10. Consequently, this revision is partly allowed. The order of the Addl. Sessions Judge granting maintenance to Goma Devi is set aside. The order granting maintenance to the children is upheld.