Full Judgment
Rekha Kumari, J.
1. This application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) is for quashing the order dated 30.9.2004 passed by the learned Sub-divisional Judicial Magistrate, Hajipur in Misc. Case No. 102 of 2002/ T.R. No. 1277 of 2004 under Section 125 of the code by which he has ordered the petitioner to pay ad interim maintenance at the rate of Rs. 1400/- per month to his wife Smt. Shobba Singh (Opposite Party No. 2) for maintenance of herself at the rate of Rs. 400/- and for her four minor children at the rate of Rs. 250/- each per month.
2. Heard learned Counsel for the petitioner and the learned A.P.P. appearing for the state. Opposite Party No. 2, though has appeared in this case by filing Vakalatnama but no one on her behalf appeared in Court when the case was called out for hearing.
3. Learned Counsel for the petitioner submitted that the petitioner is ready to keep Opposite Party No. 2 and the four children but Opposite Party No. 2 herself is not ready to live with him. He further submitted that the petitioner has no source of income. The learned court below has also not considered this aspect though in his show cause (Annexure-2) he has stated that he has no source of income and he is un-employed. He further submitted that though the petitioner is an un-employed person, by doing tuition work he would manage to pay maintenance but it would be difficult for him to manage Rs.1400/- per month and the same may be reduced to Rs. 1000/- per month.
4. It is not disputed that Opposite Party No. 2 is the wife of the petitioner and the four children were born from their wed look and are minors. It is also not disputed that opposite Party No. 2 along with her children was living separately and the petitioner is not maintaining them. Therefore, a prima facie case is made out that Opposite Party No. 2 had her minor children and are entitled to interim maintenance.
5. The impugned order, however, shows that the learned S.D.J.M. has not considered the income of the petitioner.
6. Therefore, considering the submissions of the learned Counsel, total amount of maintenance at the rate of Rs. 1400/- per month is reduced to Rs. 1000/-per month in the manner that the wife would get Rs. 300/- and the four children would get at the rate of Rs. 175/- per month. It may also be mentioned that the learned Counsel for the petitioner submitted that the petitioner is unable to pay the arrears at one time and, therefore, he may be allowed to pay the same in instalments. The petitioner is at liberty to file an application to that effect in the court below and in that event the learned court below after hearing both the parties would pass an appropriate order in accordance with law.
7. With the above modification in the impugned order, this application is disposed of.