Full Judgment
J.P. Singh, J.
1. This Civil Revision is directed against order dated 23-3-2005 of learned Additional District Judge, (Matrimonial cases), Jammu, whereby the petitioner has been directed to pay an amount of Rs. 2,000/- (Rupees two thousand) as maintenance pendente lite, which includes an amount of Rs. 1,000/- (Rupees one thousand), awarded by learned Munsiff, Judicial Magistrate Ist Class (Forest Cases), as maintenance under Section 488 Cr. P. C.
2. Sh. K. S. Johal, learned Counsel appearing for petitioner-husband, submits that learned Additional District Judge (Matrimonial cases), Jammu, has erred in appreciating evidence which was led by the parties, for and against, the application seeking grant of maintenance pendente lite. He further submits that no reason has been given by the learned Additional District Judge (Matrimonial Cases), Jammu, to reject the evidence of the petitioner husband.
3. In nut-shell, learned Counsel submits that the order impugned suffers from non-application of mind. He submits that petitioner is a Chowkidar in MES and has the responsibility of feeding his brother, widowed sister and father and the amount of maintenance pendente lite awarded against him, in any case is excessive. He submits that in case the maintenance is required to be paid, the amount of maintenance per month, be reduced.
4. Sh. I. R. Arora, learned Counsel appearing for respondent-wife, submits that revision against the order of maintenance pendente lite is not maintainable. He submits that learned trial Judge has appreciated evidence, in accordance with law, and the impugned order does not suffer from any error of law or jurisdiction. He further submits that the petitioner does not have any other responsibility because case projected by the petitioner in this direction stands belied by his own evidence.
5. I have considered the submissions of learned Counsel for the parties and have gone through the records.
6. Revisional jurisdiction is not a substitute of appellate jurisdiction. Appreciation of evidence, in revision, may thus be impermissible Revisional jurisdiction may be exercised only if it appears that the subordinate Court has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of jurisdiction illegally or with material irregularity or has caused failure of Justice. Such is the intention of Legislature in enacting Section 115 of Code of Civil Procedure. Whereas, Section 115(1) (a) to (c) of the Code, do not permit appreciation of evidence in exercise of Revisional jurisdiction, Clause '(d)' of Section 115, does vest jurisdiction in the High Court to see as to whether or not, the order sought to be reviewed has resulted in Failure of Justice. While exercising Revisional jurisdiction, the evidence led by the parties can, thus, be looked into but not in that fashion in which the appellate Court may do so. Such an exercise, on the other hand, is restricted only to find as to whether any Failure of Justice has occasioned by the impugned order.
7. In order to consider the plea of the learned Counsel for the petitioner that the impugned order suffers from non-application of mind. It would be advantageous to consider the findings of the learned District Judge.
8. The findings of the learned Additional District Judge on the issue are, thus, reproduced hereunder:
In view of the above discussion it is abundantly clear that the petitioner is an indigent spouse who has been condemned to penury by the respondent due to the strained relations between the two spouses.
Now the Court has to see whether the respondent is a man of substance and whether he can pay the amount claimed in this petition. In such applications one in hand the Court has to consider the financial status of financially sound spouse and his other obligations towards other family members. In the case in hand the respondent's brother are employed in MES and the University. Moreover, the younger brother who is employed in the University is running an Academy under the name and style Dashmash Academy as per evidence. The respondent's father has retired from MES and earns his monthly pension. Moreover has an additional income from joint agricultural land. The respondent's father not only takes care of his wife himself but he provides food grains to his children as is admitted by respondent's brother Dalbir Singh. Respondent's brother Dalbir Singh has deposed before this Court that he also pays Rs. 1000/- to his father from his own earnings. All the siblings of the respondent are financially independent, thus the respondent has no financial responsibility of his siblings or the parents.
The respondent is a well to do person who is gainfully employed in MES and earns not less than Rs. 5000/- monthly salary. Instead of providing maintenance to the wife sufficiently he is enjoying his monthly salary all alone, whereas the petitioner/wife has been left to her fate. A wife is an equal partner of her husband in fortunes and misfortunes in life. The status of equality guaranteed under law entitles the wife to claim an equal share in the husband's earning like his fortunes and misfortunes. Even if the wife would have been qualified but would not have chosen to work but it would be immaterial for the purpose of this petition. If a wife chooses to divert her energies to the house hold work that will not deprive the wife from claiming her share from the husband's income. The basis of Section 30 of the Act is equality because under this provision of law even a husband can claim maintenance from the wife, when the former has no source of income for sustenance and latter has.
Now the duty cast upon the Court is to consider what amount is required by the petitioner for her food, clothing and other expenses per month keeping in view the standard of living of the Husband's family. The respondent is an employee of MES and belongs to a middle class family, as such, the wife is also entitled to such amount of maintenance in which she can maintain the same standard of living. Keeping in view the standard of living of the petitioner's husband's family, a sum of Rs. 2000/- appears to be reasonable, if granted on account of maintenance pendente lite.
9. Perusal of the above extracted finding of learned trial Court shows that the learned trial Judge, has applied mind to the facts of the case and recorded findings on the basis of the evidence.
10. The plea raised by learned Counsel for the petitioner that there is non application of mind is, thus, without any basis which is, accordingly, rejected.
11. In order to see whether any Failure of Justice has been caused by the order impugned in the revision petition, I examined the evidence recorded by the learned trial Court. The evidence led by the parties, establishes the following facts:
(1) Petitioner is posted as a Chowkidar in MES and his monthly salary is Rs. 5000/-(Rupees five thousand).
(2) The father of the petitioner is dependent on his own earnings. He gets an amount of Rs. 1000/- (Rupees one thousand) from his another son namely Dalbir Singh.
(3) The younger brother of the petitioner is working on ad hoc basis and getting salary of Rs. 1500/- (Rupees fifteen hundred) per month.
(4) Petitioner's father has 16 kanals of land.
(5) Widowed sister is getting family pension.
(6) Respondent is only middle pass and without any employment. She is dependant on her father.
12. I, thus, do not find any substance in the plea of the petitioner, that order impugned in the revision petition has resulted in Failure of Justice. Direction of the Court to pay an amount of Rs. 2,000/- (Rupees two thousand) per month to the wife of the petitioner, who had admitted his salary to be Rs. 5000/- (Rupees five thousand), cannot, by any stretch of reasoning, be said to have occasioned Failure of Justice. A husband cannot shirk his responsibility to maintain his wife who is unable to maintain herself. The responsibility to maintain dependent spouse is recognized under Section 30 of the J. & K. Hindu Marriage Act, 1980 and the earning spouse, capable of paying the amount, cannot avoid this statutory responsibility on any ground, muchless the ground of feeding other relations of the spouse.
13. No jurisdictional or legal error too has been pointed out in the impugned order. This revision petition, therefore, fails and is dismissed with costs assessed at Rs. 1000/- (Rupees one thousand).