Judgment:
A.P. Chowdhri, J.
1. This order will dispose of Criminal Revision No. 720 of 1989 and Criminal Misc. 2967 of 1990. Both these petitions arise out of the proceedings instituted by Smt. Sushma Rani and her infant child against Ramesh Kumar under Section 125 of the Code of Criminal Procedure.
2. Sushma Rani was married to Ramesh Kumar on October 25, 1987. The parties have not been living together since October, 1988. A son was born on October 18, 1988. The wife filed a petition under Section 125 on January 28 1989, claiming Rs. 500/- per mensem as maintenance for herself and an equal amount for her minor son. The husband is employed in CBI and, according to the wife, he was getting Rs. 1,800/- per mensem as emoluments. In the written statement filed by the husband, it was stated that his carry-home salary was Rs. 1,300/-and he had to maintain aged parents. By Order dated June 9, 1989, the judicial Magistrate Ist Class, Malerkotla, fixed interim maintenance at the rate of Rs 300/-per mensem for the wife and Rs. 200/- per mensem for the minor son. The amount was made payable from the date of the main petition. The husband filed Criminal Revision noted above against the said order. By order dated November 9, 1989, the learned Magistrate finally disposed of the petition under Section 125 of the Code of Criminal Procedure and fixed maintenance at the rate of Rs. 400/- for the wife and at the rate of Rs. 200/- for the child. It is against the final order that Crl. Misc. No. 2967 of 1990 has been filed by the husband.
3. The contention of Shri Girish Agnihotri, learned Counsel for the petitioner, is that all along the husband was ready and willing to keep the wife and he could not, therefore, be asked to pay maintenance to the wife and the child. In support of his contention, learned Counsel pointed out that the husband had filed an application under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights, which was pending in the Court at Delhi. His second submission is that the amount fixed by the Court is excessive. The husband has to support his old parents. He has also to meet the cost of litigation and at the time of admission of Criminal Misc. No. 2967 of 1990 this Court directed the arrears to be paid at the rate of Rs. 350/- per mensem. This order had since been complied with. Learned Counsel also adverted to the fact that the maximum maintenance under the statute was Rs. 500/- per mensem and this indicated the broad policy of the Parliament and should have been taken into account in the case of a person with a very limited salary and liability to maintain aged parents.
4. Learned Counsel for the wife, on the other hand, contended that the amount of maintenance, both interim as well as final, had been fixed for good reasons detailed in the order and in the exercise of the revisional powers of this Court the discretion exercised by the trial Magistrate ought not to be interfered with. Learned Counsel also contended that interim maintenance in the nature of things was only tentative and should not be taken to be final and should not therefore, affect the final determination of the amount of maintenance fixed at the time of the disposal of the petition.
5. I have given anxious consideration to the respective submissions of the learned Counsel.
6. In the absence of any material on record, it cannot be doubted that carry home salary of the husband was Rs. 1,300/-. It cannot also be doubted that he has to support aged parents. It is on a consideration of the totality of facts and circumstances of each case that a fair and reasonable amount of maintenance has to be fixed. By order dated June 9, 1989, the learned Magistrate had fixed Rs. 300/- per mensem for the wife and yet at the time of final determination the amount was hiked to Rs. 400/- without there being any additional material on record such as that in the interregnum period the salary of the husband had increased. This appears to be arbitrary. There was hardly any justification for increasing the amount. Technically, no doubt, interim maintenance in the nature of things was only tentative, but a perusal of the order recorded in this behalf by the learned Magistrate shows that he had taken into consideration the relevant facts and material on the file at the time of fixing the interim maintenance. Keeping in view the carry home salary and the liability of the husband, an allowance of Rs. 200/- per mensem for the minor in addition to the allowance fixed for the wife appears to be on the higher side.
7. For the aforesaid reasons, the maintenance allowance for the wife is fixed at the rate of Rs. 300/- per mensem and that for the child at the rate of Rs. 100/- per mensem. The amount already paid shall stand adjusted. The balance shall be paid within three months. The above maintenance allowance shall be effective from the date of the main petition i.e. January 28, 1989. Both the matters are disposed of in these terms.