- (1.) M. A. Khan, J. This is a revision against the judgment and order dated 7. 10. 94 passed by the 1st Additional Sessions Judge, Bahraich thereby allowing the revision of respondent No. 2 and setting aside the judgment and order dated 3. 9. 93 passed by the learned Magistrate on an application moved under section 125 Cr. P. C. by the wife.
(2.) IT appears that Smt. Shiv Devi had filed a petition under section 125 Cr. P. C. against Rajit Ram, her husband on the ground that the husband has neglected and failed to maintain her and, therefore, maintenance has been claimed. Accordingly a sum of Rs. 400 per month was ordered be paid by the husband by way of maintenance to the wife. Against that judgment and order, the husband Rajit Ram filed a criminal revision and the learned revisional Court gave a different finding and held that the wife herself did not like to live in the company of the husband and, therefore, she was not entitled to claim maintenance. Accordingly the learned revisional Court allowed the revision and the petition under section 125 Cr. P. C was dismissed. Feeling aggrieved against the said judgment and order, the present revision has been filed. I have heard the learned Counsel for the revisionist and I have gone through the record. Learned Counsel for the revisionist has argued that the learned revisional Court had absolutely no powers to upset the finding recorded by the learned Magistrate for payment of maintenance and the powers of the revisional Court are very limited.
(3.) IN support of his contention, learned Counsel for the revisionist relied upon the case of Mustfa Shamsuddin Shaikh v. Shamshad Begum Mustafa Shaikh and others, 1991 Cr LJ 1932. in which it has been held as follows: " IN proceedings under section 125 of the Code, it is not necessary for the Court to ascertain as to who was in the wrong and whether the wife was guilty of leaving the matrimonial house without any reason. Even assuming that the wife is in the wrong while leaving the house she cannot be deprived of maintenance when husband contracts second marriage and that fact by itself entitles her to live separately. The proceedings under section 125 of the Code should not be confused with the matrimonial proceedings between the parties. A right to claim maintenance under the Code is not dependant upon who was right and who was wrong in the matrimonial disputes. The Magistrate is duty bound to award maintenance once it is found that the wife is unable to maintain herself and her husband has means but still neglects or refuses to maintain the wife. The Magistrate is not required to examine whether the conduct of the wife in initially leaving the house was just or not. The conduct of the wife at the time of leaving the house is wholly irreverent and the Magistrate must concentrate on the facts and circumstances existing on the date of passing order on application filed under section 125 of the Code. " Similar view has been taken in case of Gangabai v. Shriram alias Shrikishan, 1991 Crilj2018. in which it has been held that the wife is entitled to maintenance despite the fact that she was living separately from the husband. In case of Mst. Ansuiya Bai v. Nawaslal, 1991 Cri LJ 2959. it has been held that if there is any assertion by wife that she is not doing anything that is sufficient to attract the provisions of section 125 Cr. P. C.;