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Gh. Hassan Ganai Vs. Mst. Raja Bibi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1973CriLJ1019
AppellantGh. Hassan Ganai
RespondentMst. Raja Bibi
Excerpt:
- .....judicial magistrate 1st class magam by his order -dated march 12. 1971. the applicant before the trial magistrate was one raja bibi (hereinafter called 'the petitioner1). she claimed maintenance from her husband ghulam hassan ganai (hereinafter called 'the respondent') for herself and her minor daughter from him. the claim proceeded on the allegation that she was lawfully wedded wife of the respondent for the last fourteen years; tfiat she was all along ill-treated by the respondent, that she as also her daughter have been completely deserted by the respondent for the last nine years during which ihe has not paid any maintenance to them despite the fact that he is a man of substance: and that he has also refused to allow her to live with him.2. the respondent resisted the application.....
Judgment:
ORDER

Mufti, J.

1. This revision petition arises out of an application under Section 488 Cr.PC allowed by Munsiff. Judicial Magistrate 1st Class Magam by his order -dated March 12. 1971. The applicant before the trial Magistrate was one Raja Bibi (hereinafter called 'the petitioner1). She claimed maintenance from her husband Ghulam Hassan Ganai (hereinafter called 'the respondent') for herself and her minor daughter from him. The claim proceeded on the allegation that she was lawfully wedded wife of the respondent for the last fourteen years; tfiat she was all along ill-treated by the respondent, that she as also her daughter have been completely deserted by the respondent for the last nine years during which Ihe has not paid any maintenance to them despite the fact that he is a man of substance: and that he has also refused to allow her to live with him.

2. The respondent resisted the application on the ground that the petitioner had gone to her parental house with his permission but didn't return and didn't also subsequently come to live with him despite offers made by him and that he was even now prepared to keep her as his wife and to live with her.

3. On consideration of the evidence the trial magistrate found that the applicant had proved tihe allegations made in her application. In that context he allowed maintenance to the jpetitioner at the rate of Rs. 15/- p. m and also granted maintenance to her daughter at Rs. 10/-p.m. from the date of the application. The respondent went in revision to the Sessions Judge. Srinagar who by -his order dated December 29. 1971. dismissed the same, Hence this further revision.

4. Appearing for the respondent L. Nanak Chand contended that the courts below had omitted to consider the offer made by the respondent and the effect that it had on the proceedings. The finding though not express is implicit in the judgments of the courts below that the offer was not reasonable. Both the courts have held that the respondent has deserted the petitioner and her daughter and also neglected to maintain them. This clearly suggests that the offer has been considered by them and found to be unreasonable. I see no reason to depart from this view. The petitioner has set up this offer as a defence to the proceedings without actually meaning it as his past conduct of desertion and negligence show.

5. Mr. Nanak Chand argued next that the respondent was not possessed of sufficient means and could not therefore be saddled with liability for maintenance under Section 488, Cr.PC On this point according to him, the trial Magistrate had recorded no finding while that recorded by the Sessions Judge was perverse. The trial Court has upheld the allegations made in the application implying thereby that the allegation about the respondent being a man of sufficient substance was affirmed. This has been amplified by the Sessions Judge when he says that 'there is evidence on record that the petitioner is a patwari and is a man of substance.' These observations of the Sessions Judge are not without basis. There is ample evidence on the record that the respondent is a patwari and possesses some land as well measuring 5/10 kanals. As such it is difficult for me to hold that the trial Magistrate has recorded no finding on this point or that recorded by the Sessions Judge is perverse. That apart, the word 'means' in Section 488. Cr.PC does not only signify means like income, revenue, or estate or the definite employment but also includes the capacity to earn money. Accordingly if a man is healthy and able bodied, he must be taken to have means to support his wife and children. There is nothing on the file to indicate that the respondent lacks any of these. Viewed from any angle therefore the argument of Mr. Nanak Chand on this point cannot be allowed to prevail.

6. For these reasons I find no merit in this revision petition which is hereby dismissed.


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