V.P.Mathur - (1.) THIS revision is directed against the order dated 6-8-83, passed by Sri J. M. Srivastava, the then Special Judge, Ghazipur, whereby he has upset the findings and order, recorded by Mr. H. L. Kureel, the then III Additional Munsif Magistrate, Ghazipur, on 11-10-82.
(2.) THE proceedings started on an application under section 125 CrPC moved by Smt. Meera Devi, the present revisionist. She said that she was a duly married wife of Chandradhar Vishkarma, the opposite party. She went to the house of her husband and started living with him as a faithful wife and discharged all marital obligations. A son was also born. Subsequently, she found that her husband was addicted to intoxication and when it, was protested, she was thrashed mercilessly. THEreafter the behaviour of the husband became cruel as a result of which she was compelled to come back to her parent's place. A panchayat was convened in which her husband also participated. He agreed to take her back with the promise not to misbehave with her any more. Upon this assurance she went to the house of the husband but she found that there was no change in the habit and behaviour of the opposite party towards her. He used to come down upon her with greater ferocity. He took away the ornaments and clothes of the revisionist and turned her out of the house with a threat that if she dared to come back she would be killed. THEreafter no maintenance was given either to her or to her son and she has no means of subsistence. THE husband draws Rs. 700/- per month as salary. She, therefore, claimed Rs. 150/- per month for herself and Rs. 50/- for her minor son. The learned Magistrate took account of the entire evidence that was adduced before him and he made his judgment on six points, which in his view arose for decision He came to the conclusion that the husband was guilty of cruelty and that the wife was turned out of the house and was forsaken. He also came to the conclusion that she was unable to maintain herself and her minor son and that the husband was earning Rs. 700/- per month and was thus liable to pay Rs. 150/- to the wife and Rs. 50/- to the son, every month. A consolidated amount of Rs. 200/- was thus granted towards maintenance of both the wife and son. In criminal revision no. 162 of 1982 the learned Special Judge upset the findings of fact recorded by the learned Magistrate and held that the lady was not entitled to any maintenance. He dismissed the petition outright. He did not even consider that at least the son was entitled to maintenance because he was still a minor and even if the woman was not entitled to maintenance for any reason, there was nothing to debar the son from claiming the same, hence this revision.
(3.) THE learned counsel for the respondent concedes that so far as the grant of Rs. 50/- per month as maintenance to the son is concerned, there was no justification for the learned Special Judge to even deny that relief and that whatever may be the effect of the income from sewing to Smt. Meera Devi with respect to her own maintenance, she was entitled at least to Rs. 50/- per month as maintenance to her son. On facts and merits of the case, the finding of fact regarding cruelty has been disturbed by the learned Special Judge without recording any reason for coming to a different conclusion. There is sufficient evidence on record to show that Panchayats were held with respect to the conduct of the respondent husband towards Smt. Meera Devi. There is her own statement to the effect that she was ill treated, beaten and ultimately turned out of the house by the husband. There is nothing on record to show that the husband ever tried to bring her back. She shall, therefore, remain with her parents for a pretty long time since she was turned out of the house. It is undisputed case of the parties that the parents of Smt. Meera Devi are very poor and the husband has even gone to the extent of saying that because of his poverty his father-in-law had obtained loan from him for the purpose of performing the marriage of his another daughter. This being the financial condition of the parents of Smt. Meera Devi, it cannot be said that the father of Smt. Meera Devi was in a position to maintain her. There is, however, one snag in her way. It is in evidence that some time before 1980 under the Scheme of ' Self Employment ' the Gramin Bank advanced a loan of Rs. 690/- to Smt. Meera Devi and out of that amount a sewing machine was purchased and handed over to her. This was obviously on her representation that she knew sewing and want to earn her own living with the help of that machine. She was found working in the year 1980 when the Bank Manager visited her. These facts are neither disputed nor denied by the lady. As a matter of fact she is completely mum about this aspect of the case. Undoubtedly her story that she does not know sewing is now rendered unreliable and wrong. She had obtained the machine for the purpose of earning her livelihood through it and it is expected that she is working on this machine and is making her earnings. Of course, she has to return the loan of Rs. 690/-. It was within her special knowledge at to what she is earning from this machine since she is possessed of it. She has not adduced any evidence whatsoever. When she filed the application under section 125 CrPC, it was her burden to discharge by showing that she is not able to maintain herself. She does not discharge this burden, especially after having got the machine. It was necessary for her to have made a statement or adduced evidence to show as to how much work she is taking from this machine and what it is fetching to her and also to show that after paying instalments and interest, if any, what still is left with her for her maintenance. She does not adduce any evidence in this respect and I think the learned Magistrate did not look into this aspect of the matter. There is nothing on record to show as to since when she is possessed of this machine and how much money she has already earned. Under these circumstances, she was not entitled to any maintenance because she has failed to prove that she is unable to maintain herself. But so far as the son is concerned, he will be entitled to the maintenance amount of Rs. 50/- per month, which amount will be paid to his mother Smt. Meera Devi because he is living with her and is under her guardianship.;