MOSOODA BEGUM Vs. M A KHAN

JUDGEMENT

(1.) V. P. Mathur, J. Mr. S. P. Verma, the then III Additional Sessions Judge, Farrukhabad, while deciding Criminal Revision No. 262 of 1983, reversed the order and judgment dated 12-13-1983, passed by Sri Shyam Vinod, VII Munsif Magistrate, Farrukhabad, and rejected the application of Smt. vlasooda Begum under Section 125, Cr. P. C. for maintenance for herself and for her daughter. The learned Munsif Magistrate had granted maintenance allowance of Rs. 120 per month to Smt. Masooda Begum and Rs. 60 per month to the minor daughter.

(2.) BRIEFLY stated, the admitted facts of the case were that the parties were married on 30-1-1980. The father of Smt. Masooda Begum is in Government service working in the Horticulture Department of U. P. Mashkoor Ahmad is also in Government service, working with the U. P. Government Roadways and admittedly was earning Rs. 429 per month (in the year 1983 ). Similarly the salary of the father of the wife was also in the neighborhood of Rs. 500 per month in the year 1983 when the statement of the witnesses were recorded in this case. The contention of the petitioner was at the time of marriage sufficient dahej in cash and kind was given but the husband was always complaining about its paucity and was constantly pestering her for more and more. Once he had turned her out of the house but at the entreaties of her father and others she was again allowed to live with the husband and then she was given a beating and turned out by the husband in November, 1982 and since 8-11-1982 she is living with her father. A daughter was born to her while she was living with her father and it was the daughter of the opposite party. Since then he has not taken care of them and the latest positions which has been brought on record through additional evidence in the nature of an affidavit and a copy of a nikahnama is that the husband has taken a second wife. This affidavit has not been controverter although time was allowed and the counsel for the husband has given out that he does not want to file any objection or counter affidavit. She claimed a sum of Rs. 500 per mouth by way of maintenance amount for himself and her daughter. The learned Magistrate after taking down the evidence come to the conclusion that she was unable to maintain herself, that the husband sufficiently well off and was in a position to maintain her and the daughter and, therefore he fixed Rs. 120 per month for the wife and Rs. 60 per month for the daughter by way of maintenance. The learned Sessions Judge upset the findings of the learn ed Magistrate; by reassessing the evidence that [was adduced. This was not permissible under law. Unless the findings of the Magistrate are found to be perverse and unless the Magistrate has not looked into all the evidence on record, the revisional court has no jurisdiction to upset the findings of the Magistrate by coming to a different conclusion arrived at by the Magistrate was also possible.

(3.) A clear finding can be recorded that the wife is not possessed of means to support herself. A very vague suggestion that she owns a sewing machine would not lead us anywhere. It may be true but there is nothing on record to show that with the help of sewing machine she is carrying out any professional work and is making any earning. No evidence has been adduced in this respect. The wife is not bound to return to the husband and it entitled to a separate living, this case, also because the husband has admittedly married again and as has been held in the case of Begum Subanu v. A. M. Abdul Gafoor, 1987 (24) ACC 207 (SC) by the Supreme Court a right has been conferred on the wife under the Explanation to Section 125 of the Criminal Procedure Code to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. It matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. This being the legal position now, no question arise of the revisionist's returning to the husband and the husband's contention that he is prepared to keep her becomes absolutely insincere and unreal. I, therefore, find that Smt. Masooda Begum was entitled to the maintenance allowance from he? husband.