JUDGMENT Poonam Srivastava, J.
1. Heard learned counsel for the applicant at length.
2. This application has been filed with the prayer to set aside the order dated 8.7.2005 passed by the Additional District Judge III, Ghaziabad in Criminal Revision No. 21 of 2004 and to maintain the exparte order dated 17.5.2002 passed by the Judicial Magistrate.
3. The facts giving rise to the dispute is that the opposite party Smt. Laxmi Devi was married to the applicant. She was subjected to severe cruelty for not bringing dowry. Two children were born from their wedlock but the applicant refused to maintain the wife and children. A divorce suit was instituted in Delhi on 3.12.2001, after the opposite party along with her children was turned out by the applicant. Finally an application under Section 125 Cr.P.C. was instituted by the wife Smt. Laxmi Devi claiming maintenance for herself and two children, numbered as case No. 97 of 2002. The Judicial Magistrate Hapur, District Ghaziabad awarded Rs. 300/- per month to the wife and Rs. 200/- to the elder child and Rs. 100/- to the younger child, total amount of Rs. 600/- per month vide order dated 17.5.2002. This order was an exparte order. Counsel for the applicant submitted that an application was moved on 26.8.2002 for recalling the exparte order but without any notice, the learned Magistrate enhanced the amount of Rs. 600/- to Rs. 900/- vide order dated 30.10.2003 which was challenged in criminal revision. The revisional court stayed the recovery of the maintenance amount subject to the condition that half of the arrears shall be deposited within 15 days and half of the maintenance amount shall be deposited by 10th day of each succeeding English Calendar month. This order was passed on 13.1.2004. Needless to say that the applicant failed to deposit any amount whatsoever. The revision was finally dismissed vide judgment and order dated 8.7.2005 by the 3rd Additional District and Session Judge, Ghaziabad.
4. I have gone through the entire record and it is very clear that the assertion by counsel for the applicant that the amount of Rs. 600/- per month was enhanced unilaterally without any notice to the applicant to Rs. 900/-, is an absolutely misleading statement. It appears that when the application dated 26.8.2002 was filed with the prayer for recalling the exparte order, the said order was recalled but the applicant did not annex the order allowing the application of the applicant dated 26.8.2002. On perusal of the order dated 30.10.2003, it transpires that the application under Section 125 Cr. P.C. was heard afresh. The applicant was given opportunity to file his objection and evidence was recorded. The arguments of the counsel for both the parties were heard and thereafter by means of well discussed and reasoned order the Judicial Magistrate, Hapur, Ghaziabad allowed the application on 30.10.2003 awarding Rs. 500/- to the wife, Rs. 250/- and Rs. 150/-respectively to the two children from the date of application i.e. 15.4.2002. It is, therefore clear, the argument that the amount of maintenance was enhanced from Rs. 600/- to Rs. 900/- unilaterally in favour of the opposite party without any notice to the applicant, is baseless and apparently misleading. It can not be said that the order was passed without notice to the applicant. The earlier order dated 17.5.2002 which was an exparte order, was recalled and it became non-est after the recall application was allowed. While allowing the application under Section 125 Cr.P.C., the learned Magistrate has clearly recorded a categorical finding that on the basis of evidence produced by Smt. Laxmi Devi, he is satisfied that the applicant works as electrician and he has an income of approximately Rs. 20,000/- per month. The learned Magistrate has observed that though there is no documentary proof regarding income of the husband, in spite of it since Smt. Laxmi Devi is married to the applicant and is also taking care of the two children and the applicant being a healthy young man, is liable to provide maintenance to his wife and children. The applicant had very clearly accepted in the court that he works as labourer. Counsel for the applicant has cited two decisions in support of his contention, 1999 U.P. Criminal Ruling, 576, Sheo Nath v. State of U.P. and 1997 A.C.C., 863.
5. I have gone through decisions and I am of the considered view that it is of no help to the applicant. It is also noteworthy that the revisional court had also passed conditional interim order on 13.1.2004 which was never complied with by the applicant and finally revision stood dismissed on 8.7.2005. There is no merit in the present case. The applicant is an able bodied person and can well earn and provide for his wife and children, therefore, I do not consider that any curtailment in the amount already awarded is called for. In the present economic set up amount of Rs. 900/- per month for two children and wife is hardly sufficient to meet two square meal a day.
6. The Judicial Magistrate had awarded Rs. 900/- per month from 15.4.2002, the total amount payable till the month of August, 2005 is approximately Rs. 36,900/-. The applicant is directed to deposit half of the amount i.e. Rs. 18,450/- within a period of six weeks from today and remaining amount shall be paid in two equal installments at interval of two months each (Rs. 9,225/-). The period of two months will be calculated from 12.9.2005. Rs. 9,225/- shall be paid by 15th January, 2006. This amount will be payable in addition to the amount of maintenance to the tune of Rs. 900/- per month. In the event of default of first installment, this liberty of installments granted shall stand automatically cancelled. The applicant, if makes default in the payment of Rs. 900/- per month, this liberty will stand automatically vacated. It is made clear that in the event amount is deposited by the applicant, the same shall be disbursed to the opposite party Smt. Laxmi Devi without taking any security.
7. With these observations, this application is dismissed.