B.L.YADAV, J. - (1.) THIS revision under section 97/401 Criminal Procedure Code 1973 (for short the Code) is directed against the judgement and order dated 8 -6 -1984 passed by the 1st Additional District and Sessions Judge varanasi , allowing the revision filed by Saudagar Ali, the husband, against the present Applicant, the wife and setting aside the order dated 30 -1 -1984 passed by the Magistrate, who allowed the application of present applicant, and granted her maintenance at the rate of Rs. 200/ - per month and Rs. 200/ - to her children , in a proceeding under section 125 of the CDode initiated by the present applicant, the wife, claiming maintenance for herself and her minor children.
(2.) THE present applicant filed the application under section 125 claiming maintenance for herself and half years back , who was maintaining her and was in an aflluent position being the Propritor of a tailoring shop and has got so many servents and earns Rs. 200/ - per day . but refused to maintain her and treated her with cruenlty, and after being drunk treatened her leave the house with her children otherwise she would be killed. On 22 -4 -82 she was severely beaten by him, and she got her injuries medically examined. The allegations in the application were denied by the opposite party no. 2.
(3.) LEARNED Magistrate allowed the application for maintenance filed by the present applicant and awarded a sum of Rs. 200/ - per month for herself and Rs. 200/ - per month for her children, as maintenance from the opposite party no. 2, Saudagar Ali, the husband by it 's order dated 30 -1 -84. Against that order a revision was filed by the husband before the Sessions Judge which has been allowed and that order passed in revision has been challenged before this Court by present applicant. Learned counsel for the applicant, Sri Sachindra Mohan, urged that the learned Sessions Judge erred in not appreciating the scope of revision under section 397 of the Code as he set aside the order of Magistrate without holding, as to what was impropriety, in the order of learned Magistrate and he has actually considered the oral evidence afresh, but did not refer to the entire evidence on the record, he has just considered the statements of PW 4 Vakil Ahmad, PW 2 Ali Ahmad and PW 1 Bunga and the statement of opposite party no. 2, the husband whereas present applicant has examined PW 1 Bunga, PW 2 Ali Ahmad, PW 3 Samsuddoha, PW 4 Vakil Ahmad and PW 5 Alimun Nisa herself (present applicant). In support of his case opposite party no. 2 the husband examined himself as OPW 1, Mohd. Idrish as OPW 2, Sharda Prasad Shukla as OPW 3, and Iqbal Ahmad as OPsV 4 but the statements of all the witnesses were not considered. It was further urged that the learned Judge did not appreciate the nature and scope of the application for maintenance under section 125, under Chapter 9 of the Code deatiog with the order for maintenance of wife, child and the parents and assuming those proceedings to be of a permanent nature, has set aside the order of learned Magistrate whereas those proceedings are just summary in nature to stop vagarancy and to make a provision for a bare maintenance of neglected wife and child etc. The maximum sum to be awarded being Rs. 500/ - per month only. It was further urged that the amount of Rs. 400/ - per month (Rs. 200/ - for wife and Rs. 200/ - for children) was not excessive keeping in view the status of the opposite party no. 2 the husband who was a good tailor master having a number of tailors as servants and was earning at least Rs. 200/ - per day. Accordingly it was urged that the order passed by learned Sessions Judge deserves to be set aside, and that of the Magistrate may be restored.;