B.L.Yadav - (1.) THIS revision under section 397/401 of the Code of Criminal Procedure, 1973, (for short the code) is directed against the judgment and order dated 20th October, 1983, passed by VIII Additional Sessions Judge, Moradabad, allowing the revision filed by Smt. Urmila Devi, opposite party no. 1 enhancing the rate of maintenance from Rs. 250/- to Rs. 500/- per month and rejecting the revision filed by the present applicant against the order dated 4-2-1983 allowing the application of Smt. Urmila Devi, opposite party no. 1 under section 125 of the Code and awarding a sum of Rs. 250/- per month as maintenance payable by the present applicant, the husband to opposite party no. 1, the wife.
(2.) THE bereft of details the facts are these. An application under Section 125 of the Code was filed by opposite party no. 1, the wife on the ground that she was married to the applicant on 10-3-76 and a son Shasta Gopal Upadhyaya was born on 29-1-77. But the applicant refused to maintain her and has turned her out. Hence she filed an application for maintenance claiming at least Rs. 500/- per month. The applicant husband alleged that he did not turn her out rather she went to live with her parents out of her own accord. It was further alleged that a suit for divorce was filed by him which has been decreed. It was further stated that on 26-2-79 the opposite party no. 1, the wife, along with 5 others reached his residence in Kashipur, attacked him, beat him and forcibly took possession of his residence and that she continued to behave like a free lancer and did not want to live with him, and that her application was liable to be dismissed. The learned Magistrate, however, rejected the plea raised by the applicant and held that opposite party no. 1 was married to the applicant, who refused to maintain her. Consequently, under the circumstances of the case, he awarded a sum of Rs. 250/- as maintenance to her since 1-5-80, the date of application, and also directed the past arrears to be paid. Both the parties preferred revision and by the impugned order dated 20-10-83 the maintenance amount was enhanced to Rs. 500/- per month and the revision tiled by the applicant, the husband, was rejected. Against these orders the present revision has been filed.
(3.) SRI Keshav Sahai, learned counsel for the applicant urged that no ground for enhancement of maintenance was made out and as the opposite party no. 1 was M. A., B. Ed., she cannot be said to be unable to maintain herself. Hence the order for enhancement of the maintenance amount was incorrect. At the same time the opposite party no. 1 was able to maintain herself, hence the application for maintenance must have been dismissed. Reliance was placed on Nanak Chand v. Chandra Kishore Agarwal, AIR 1970 SC 446 and Jagjit Kaur v. Jaswant Singh, AIR 1967 SC 1521. Sri A. B. L. Gaur, on the other hand, urged that in these hard days of spiraling prices and keeping in view the status of the applicant, particularly the fact that he was getting a salary of Rs. 1438.20 per month, the sum of Rs. 500/- awarded by the learned Additional Sessions Judge in revision was not excessive and that was the maximum amount fixed by the legislature. It was further urged that other findings including the finding about the marriage and whether the opposite party no. 2 did not want to live with her husband, has been correctly recorded against him and it has been found that the marriage was valid, and that even though the opposite party no. 1 was M. A., B. Ed. but she was unable to maintain herself and the applicant has deserted her and refused to maintain.;