N.N.Sharma - (1.) HEARD learned counsel for the parties and perused the record. This revision is directed against the order dated 9-11-1981 recorded by Sri S. N. Singh, Special Judicial Magistrate, Varanasi in Case No. 439 of 1978, under Section 125, CrPC by which the revisionist was ordered to pay maintenance to his wife Smt. Lal Mani Devi from 10-7-1978 at the rate of Rs. 100/- per month. The prayer for maintenance for child Om Babu was refused as he is already been maintained by the revisionist.
(2.) THE proceedings were initiated on a complaint registered on 28-6-1978 in the said court by wife who alleged that, parties were married according to Hindu rites about five years prior to the filing of the petition; the conjugal life lasted smoothly for a few years and son Om Babu was born out of this wed lock; however, the revisionist developed illicit intimacy with another lady Smt. Dhanwati and since then he began to maltreat the respondent and neglected to look after her; eventually about five months prior to occurrence at about 8 p. m. she was beaten by the husband and turned out of the house; bereft of her ornaments and clothes; she was obliged to return to the house of her mother; she demanded a sum of Rs. 200/- per month as maintenance for herself and her son as the income of the husband was not less than Rs. 500/- per month. A written statement was filed by the revisionist by which it was alleged that the aforesaid allegations were wrong and false; she was taken away by her mother in March, 1978 along with her ornaments etc., her mother held out an assurance to send the respondent with revisionist after one month; when revisionist went to fetch his wife, she was not sent with him; on 10-7-1978 when revisionist went again to fetch his wife his brother-in-law and respondent abused him and the child was thrown by the petitioner on the ground; his cycle was also snatched away; the child was picked up by the revisionist and brought to his house; he learnt that the petitioner developed illicit intimacy with some man in the village and so was reluctant to return to the house of her husband; he further denied the other allegations of cruelty put forward in her petition by the wife; he further alleged that his monthly income was Rs. 200/- and the wife herself was earning Rs. 150- or 200/- by preparing garlands of pearls. In support of their case respondent examined three witnesses viz. himself and Dukhoo, DW 1 and Punpun, DW 2.
(3.) PETITIONER examined herself and one Mithu PW 1 who claimed to be Sahu of Motilal and testified about to the wife. Learned trial Magistrate believed the allegations of petitioner that she was neglected by her husband who had sufficient means to maintain her; he further found that his allegations about maltreatment and snatching of the cycle were falsified by the copy of the judgment dated 8-6-1981 in Case no. 476 of 1979. Both the witnesses examined by the husband were not cited by him as witnesses about the incident of snatching of cycle or throwing the child by the petitioner. In the result the impugned order was drawn. I have heard the learned Advocates for the parties and perused the record. Learned counsel for the revisionist argued before me that such allowance was payable from the date of order or from the date of application for maintenance under Section 125 (2) of the Code of Criminal Procedure. The learned Magistrate erred in ordering maintenance from 10-7-1978 in his order dated 9-11-1981 and as such the said order suffers from infirmity. This contention fails for the simple reason that it was wir.hin the competence of the Magistrate to record an order of arrears of maintenance from the date of the application. It has been shown above that the case reached the court on 28-6-78 so no illegality is involved in the impugned order.;