- (1.) C. A. Rahim, J. This revision arises out of judgment and order dated 13-11-1991 passed by learned XIII Additional District and Sessions Judge, Moradabad allowing Criminal Revision No. 250 of 1990, setting aside the judgment and order of the learned VIII Additional Chief Judicial Magistrate, Moradabad dated 4-6-1990, in Case No. 1651 of 1990.
(2.) BY that order the Chief Judicial Magistrate awarded maintenance to revisionist No. 1 at the rate of Rs. 250 per month and revisionist No. 2, Manoj Singh at the rate of Rs. 200 per month from the date of the institution of the application under Section 125, Cr. P. C. On behalf of the revisionists it has been stated that the learned Judge erred both in law and facts, He has based his judgment on certain presump tions in favour of the husband and held that revisionist No. 1 has sufficient income to maintain herself and that she was not deserted. Learned counsel for the respondent has submitted that the respondent is aged about 70 years, a retired person, getting pension of Rs. 700 per month whereas revisionist No. 1 is a teacher and earning by coaching students. It has also been stated that she voluntarily left the house and was not neglected OF refused to maintain. Learned Judge has held that as the being school teacher and retired so. She might have earned handsome amount to maintain herself and it cannot be said that she cannot maintain herself. The presumption made against revisionist No. 1 is not according to law and the learned Judge has gives much on her leaving the house voluntarily and the help rendered by her Dewar (husband's brother) and has come to the conclusion that the voluntarily left the house of her husband. But he has not considered under what circum stances she has to leave the house. The conduct of the Dewar of revisionist No. 1 shows that the family of her husband had sympathy for her, was it for the reason that the husband (respondent) had relate on with another lady ? The allegation is that he had such connection and married the said lady and three children were born out of the wed-lock. The said fact has not been considered by the learned Judge. So the finding of the learned Judge must be struck down. I do not consider that the learned Magistrate was not justified in awarding maintenance of Rs. 250 considering the evidence and fact that the opposite party-husband gets an amount of Rs. 700 towards pension. It appears that revisionist No. 1 has attained the age of 21 years and is not entitled to any maintenance at present.
(3.) ACCORDINGLY revision is allowed in part. The judgment and order dated 13-11-1991 passed by learned XIII Additional District & Sessions Judge, Moradabad is set aside in respect of revisionist No. 1 only. In respect of revisionist No. 2 the revision is dismissed. Decided accordingly. .;