B.L.Yadav, J. - (1.) THIS revision is directed against the order dated 6-1-1986 passed by the Ilnd Additional Sessions Judge allowing the revision against the order dated 22-1-1985 granting maintenance for a sum of Rs. 250/- per month to the applicant and her children in a proceeding under section 125 of the Code of Criminal Procedure (for short the Code).
(2.) THE applicant filed an application under Section 125 of the Code that the opposite party, her husband, has refused to maintain her even though she is his legally wedded wife and has got children and she was now being refused to be maintained and that the opposite party has contracted a marriage with one Smt. Rama Devi or in any case the husband has kept a mistress. As he was refusing to maintain the applicant, hence the application was filed with a prayer to grant maintenance at the rate of Rs. 500/- per month. The case of the opposite party was that he did not remarry and that he did not refuse to maintain the applicant and that the applicant was not entitled to any maintenance. The learned Magistrate after considering the entire evidence on record allowed the application under section 125 of the Code and held that the applicant was unable to maintain herself and her children and she was granted Rs. 250/- per month as maintenance. Against this order the revision was filed and the learned II Additional Sessions Judge .allowed the same on the ground that the remarriage of the opposite party with Smt. Rama Devi has not been proved.
(3.) THE learned counsel for the applicant has urged that in view of the Explanation added to Section 125 of the Code the actual marriage of the opposite party (husband) with some other lady was not required to be proved. What was required that even if he was keeping mistress that would be a sufficient ground for the wife to refuse to live with her husband. It was next urged that the trial court has recorded a finding that the opposite party (the husband) was treating the present applicant with cruelty as he used to keep and live with the said mistress Smt. Rama Devi and that he used to go far a walk with her. This finding was not set aside. Hence the impugned order is erroneous. The learned counsel for the opposite party, on the other hand, urged that the appreciation of the evidence made by the learned II Additional Sessions Judge in revision was correct and he found that the opposite party was prepared to maintain the applicant and that he did not remarry Smt. Rama Devi, rather the applicant, wife, refused to live with the husband and that the finding about remarriage was perfectly correct and no cruelty was proved. Consequently, the application has been correctly dismissed by the learned II Additional Sessions Judge.;