Full Judgment
M.B. Sharma, J.
1. This is husband's revision petition arising out of the proceedings under Section 125 Cr. P.C. on the application of non-petitioner Smt. Manzula for grant of maintenance to herself and to her minor children, Ashish and Pratik. The learned Judge, Family Court, under his order dated February 1, 1993 ordered that the petitioner husband of Smt. Manzula and father of Ashish and Pratik non-petitioners, shall pay Rs. 500/-p.m. as maintenance to the non-petitioners up to the date of order and thereafter Rs. 700/- p.m.
2. It is well settled that before an order under Section 123(1) Or. P.C. can be made, it is necessary that some pre-conditions must be satisfied arid those conditions are : (i) the wife should be unable to maintain herself; (ii) the husband or father must he having sufficient means but neglects or refuses to maintain the wife or the legitimate or illegitimate children. It will be seen that the allegations levelled by the respondent No. 1 against her husband are that since the date of her marriage she was not properly treated by the petitioner, her husband and in the year 1987 she was beaten and was turned out of the house and the petitioner did not maintain her two minor children. So far as the case of minor children is concerned, they have no Choice of their own and have to live with their mother unless the matter of custody is decided by the proper forum and it cannot be denied that it is the duty of the petitioner to maintain his minor children also. So far as the case of respondent No. 1 that the petitioner has neglected or refused to maintain her is concerned, it will be seen that the learned Judge, Family Court has not discussed the application in its proper prospects and has recorded a finding which no reasonable man could have recorded that it was the petitioner who has refused or neglected to maintain her. A perusal of the order of the learned Judge Family Court in so far as point No. 1 is concerned will show that the finding of the learned Judge primarily is based on conjectures and surmises and not on evidence. The learned Judge has said that the allegations levelled by the non-petitioner No. 1 against the petitioner in so far as alleged beating to her by the petitioner are concerned, they are not borne out from the evidence on record. The learned Judge has said that if the petitioner would have been serious to keep the non-petitioner No. 1 and the children he would have filed an application for restitution of conjugal rights and no application for restitution of conjugal rights has been filed and it cannot be said that there was any valid cause for him not to keep them. A perusal of the documents will show that there are letters of the non-petitioner No. 1 as well as her brother from which it appears that there was no allegation of mal-treatment of the non-petitioner No. 1 at the hands of the petitioner rather the non-petitioner No. 1 and her brother wanted to leave Beawar and to live at Ajmer. In my opinion the finding of the learned Judge, Family Court that the non-petitioner No. 1 has not been able to maintain herself and the petitioner refused maintain or neglected her is perverse. Apart from what has been said above, it will be seen that Smt. Manzula in her statement has admitted the letter marked 'A' but has said that her mental state was not proper at the time when she wrote that letter. It cannot be accepted that the said letter was written from Ajmer to Beawar to the petitioner. She also admitted in her statement that she opened a tailoring institute in Ajmer. A look at a pamphlet will show that Manzula Jain had opened a tailoring coaching institute. The best available evidence would have been the accounts books to show what was the fee, what were the expenses and whether there was any profit or not. Therefore, the learned Judge Family Court should not have awarded the maintenance so far as Manzula is concerned on the ground of failure to maintain and also on the ground that she was not having any independent income to support herself.
3. But so far as the two minor children are concerned, the petitioner is their father and is bound to maintain them. The minor children have no choice of their own. If the petitioner feels that he has a right to their custody, he may move proper application before the proper forum but so long as they are living with their mother, the petitioner is bound to maintain them. The learned Judge, Family Court, in his order directed that the non-petitioner No. 1 is entitled to Rs. 300/- p.m. and each of the children is entitled to Rs. 100/- p.m. but after having said so he made an order that from May 29, 1990 when the application for maintenance was made a sum of Rs. 500/-p.m. be paid and thereafter Rs. 700/- p.m. shall be paid but he has not said as to how the amount of Rs. 700/- shall be paid and from that amount how-much amount will be paid to Smt. Manzula and how much amount was to be paid to each of the children. Such an order, in my opinion, should not have been made by the learned Judge, Family Court. Be that as it may, the petitioner is an LDC and as such is a low paid employee. Under Section. 125(2) Cr. P.C. the allowance shall be payable from the date of order, or if so ordered, from the date of application for maintenance. In the present case, where the petitioner being an LDC is a low paid employee, in my opinion it will be just if he is ordered to pay the maintenance to the children from the date of order and not from the date of application.
4. Consequently, I partly allow this revision petition and set aside the order of the learned Judge, Family Court, in so far as it allows maintenance to the non-petitioner. No. 1 Manzula and her application for maintenance to herself is dismissed. The order of the learned Judge, Family Court is modified in so far as he granted maintenance to the non-petitioners Nos. 2, and 3, the two minor children and it is directed that each of them i.e. the non-petitioners Nos. 2 and 3 shall be paid Rs. 150/- p.m. from the date of order of the learned Judge, Family Court.