PREM NARAIN Vs. MAYA DEVI

JUDGEMENT

(1.) KUNDAN Singh, J. This revision is directed against the judgment and order dated 19-9-83 of Hnd Additional Sessions Judge, Farrukhabad, in Criminal Revision No. 47 of 1983. The opposite party Smt. Maya Devi moved an application under Sec tion 125, Cr. P. C. claiming Rs. 500 per month as maintenance from the applicant. The learned Magistrate by his order dated 14-4-83 rejected the application mainly on two grounds. Firstly,that opposite party Smt. Maya Devi has neither alleged nor proved that he was unable to maintain her self and secondly,that she was leading adul terous life with one Lakhan Singh and she gave birth to a child which was aged about two years and another was a foetus of 8 months in womb.

(2.) BEING aggrieved, the opposite party preferred the revision before the learned Sessions Judge against the judgment and order of learned Magistrate dated 14-4-83. The learned Sessions Judge, after examin ing the evidence on record, came to the conclusion that inferences drawn by the learned Magistrate were wrong and the Magistrate has committed error in record ing the finding that Smt. Maya Devi was unable to maintain herself and leading adul terous life and allowed the revision direct ing the applicant to pay a sum of Rs. 100 per month as maintenance to opposite party Smt. Maya Devi.

(3.) SO far as the finding regarding in ability of maintenance by (Smt. Maya Devi) opposite party is concerned, the applicant has not alleged any source of income of the opposite party to maintain herself. Her claim cannot be refused on the ground that she had not alleged or she had not proved that she was unable to maintain herself. It will be established from the evidence on record that she was unable to maintain her self or not. In the instant case, there is no evidence on record to show that the op posite party had any source of income to maintain herself unless it is established that she had a source of income it will be presumed that the opposite party was un able to maintain herself. The learned Magistrate was not justified in holding otherwise. On the contrary, the learned Ses sions Judge was fully justified in holding that she was unable to maintain herself.