- (1.) D. C. Srivastava, J. This revision has been filed for setting aside the order dated 4th September, 1995 passed by IV Additional Sessions Judge, Fatehpur in Criminal Revision No. 314 of 1993.
(2.) THE brief facts giving rise to this revision are that an application under Section 125 of the Code of Criminal Procedure was filed by Smt. Bimala, Revisionist before the concerned Magistrate, which was allowed on 15th September, 1993 with direction to the opposite party to pay maintenance allowance at the rate of Rs. 200 per month to the revisionist and Rs. 100 per month to the minor daughter, till she attained majority. Revision was preferred against the order which was partly allowed and partly dismissed. Maintenance allowance for the minor daughter was maintained, but maintenance allowance to the wife was refused. It is, therefore, this revision. Having heard learned counsel for the parties and examining the material on record it is manifestly clear that manifest error was committed by the revisional court in not properly appreciating the evidence on record and incorrectly observing that the learned Magistrate did not properly appreciate the evidence on record. The learned Magistrate granted maintenance allowance to the revisionist on the ground that in view of unfounded allegation of unchastity and living in adultery with Gulab Singh that the revisionist was entitled to live separately from her husband. For this reference was made to paragraph 13 of the written statement of the husband and also to the evidence of the husband. The revisional court, however, was of the view that since there was no evidence in support of paragraph 13 of the written statement from the side of the husband this averment was not acceptable to uphold the allegation of unchastity which ultimately constituted cruelty towards the wife. This approach of the revisional court seems to be against the material on record. In paragaph 13 of the written statement there is clear allegation that the revisionist Smt. Bimla has developed illegal and illicit connection with her brother-in-law Gulab Singh and for this reason she is not ready to join the company of the opposite party. Annexure-1 can be referred on the point. Annexure-2 is the copy of statement of husband Madan Mohan Singh, opposite party, to this revision, which was recorded by the learned Magistrate. It is true that in the examination- in-chief he did not show anything about adultery or illicit connection between Smt. Bimla and Gulab Singh. However, examination-in-chief alone is not the evidence. On the other hand evidence constitutes examination-in-chief of a witness as well as his cross-examination. In the cross-examination Madan Mohan Singh clearly stated that so long as Bimala remained in the house of her parents in laws, she was not the lady of bad character but after reaching the house of her parents she became lady of loose character. He further stated that from villagers he came to know that it is for this reason that Bimala was not going to join the company of her husband. However, he could not tell the name of any person, who gave information to him that Smt. Bimala is a lady of loose character. This cross-examination was totally overlooked and ignored by the revisional court. The judgment of the revisional court is, therefore, against the material on record and as such it cannot be sustained.
(3.) IF husband makes unfounded allegation of unchastity against his wife or makes allegation that his wife is living in adultery with some one else or has developed illicit connection with some one else and if such founded allegation is not supported by eye evidence it certainly constitutes mental cruelty to the wife and on the ground of such mental cruelty the wife is entitled to live separately from her husband. The judgment or the revisional court that there is no evidence on this allegation cannot be appreciated. The allegation in paragraph 13 of the written statement was made by the husband and the wife claiming maintenance was not required to adduce evidence on this point. The allegation of the husband in the written statement itself could be read as allegation of unchastity against the wife which constitutes mental cruelty towards the wife. The husband was also not required to adduce evidence on the point. Moreover in cross- examination he made certain statements which have been reproduced above and these statements confirmed that he made unfounded allegation of unchastity against his wife. Wife was, therefore, entitled to get maintenance from her husband. In face of such unfounded allegation, mere statement of the husband that he is ready to keep the revisionist with him is not sufficient to disentitle the revisionist from maintenance allowance. Likewise if a suit for restitution of conjugal rites has been filed by the husband that is also not a ground for rejecting maintenance under Section 125 of the Code of Criminal Procedure.;