BINDULI Vs. RAM SAJIWAN AND A

JUDGEMENT

(1.) is an application by the wife for revision of an order dated April 20, 1978 of the court of the Sessions Judge, Fatehpur, allowing the opposite party husband's revision from an order dated January 28. 1978 of the court of the Special Judicial Magistrate, Fatehpur, and reversing the learned Magistrate's order granting maintenance to the wife at the rate of Rs. 75/-per month under Section 125 of the Code of Criminal Procedure. The parties in this case were married in the year 1968 and have a daughter from the said marriage who was about 7 years of age when the applicant wife applied for maintenance in the year 1977 in the court of the judicial Magistrate, Fatehpur. According to the allegations in the application for maintenance, which is in the form of a complaint, the applicant was the daughter of Ganga Deen resident of village Jamrawan, Police Station Husainganj, district Fatehpur, that her age was about 30 years when she was married, in the year 1968, to Ram Sajiwan son of Maikoo, resident of village Bilanda, Police Station Tharion, district Fatehpur, according to the customary rites of Hindus and discharged her marital obligations giving birth to a daughter Urmila Devi some 2 years after the marriage. It was then alleged that her husband was addicted to drinking since before and continued to do so even now; that he always used to beat and ill-treat her but she bore it all for some time in the hope that he would reform himself, butt instead of reforming himself he became worse and developed illicit connection with his younger brother Kausal's wife Smt. Shanti, and on her instigation he habitually used to beat her and threw her out of the house, in order to be alone with Smt. Shanti in the house, that her husband was the partiarch of the house; that every body was afraid of him and no body could say a word against him; that when having got fed up with all this, the applicant tried to pursuade her husband to break his connection with Snot. Shanti Devi, he did not yield, whereupon she complained to her husband's parents, but he ignored them also. It was then urged that the applicant called her father who came with respectable relatives, namely, Sita Ram son of Kishuna, resident of village Jamrawar, P. S. Husainganj, district Fatehpur; Sripal son of Baijnath, resident of village Abocpur Ajgawan, P. S Tharion. , district Fatehpur and Mahabir son of Fakire resident of village Nawabganj, P. S. Hathgam, district Fatehpur, in her husband's place at village Bilanda and tried to pursuade her husband and her father-in-law, on which her husband assured them all that, he would break his connection with Smt. Shanti, but when they went away, the process of beating and cruelty became more acute and she was threatened with grievous injury and death unless she can away from there. It was then alleged that one day the applicant was badly beaten at the instigation of Smt. Shanti, and was forcibly turned out of the house which was witnessed by a number of village people and the applicant ran for her life to her father's place along with her daughter and she was thus living at her father's place for the last 3 years, for if she had not so come away from her husband's place he would have surely beaten her to death. The applicant further alleged that her father's material condition was not good so as to be able to maintain her and her daughter. The daughter was fit to go to school but the applicant could not send her to school because of lack of means. Her husband was not prepared to maintain her or the daughter, instead he had recently come to village Jamrawan and beat her and tried to kill her. It was added that she is young and in view of the social surroundings she could not earn a living for herself and her daughter, while on the other hand her husband's financial condition was very good, he had about 25 Bighas of agricultural land, and, since he was a Kumhar by caste, he made earthen pots and sold them which yielded him the sum of Rs. 500/- per month. It was claimed that under these circumstances the applicant was entitled to a maintenance of Rs. 400 per month for herself and for her daughter. In defence the husband, in his written statement, admitted the factum of marriage and the existence of his daughter but denied the allegations of drinking, ill-treatment and beating etc. , made against him. He also denied that he had any illicit connection with his younger brother's wife and alleged that he was a follower of Hindu religion and culture according to which the younger brother's wife is like a daughter and that what he considers to be a horrible sin had been attributed to him out of malice, and was utterly false. It was then alleged by the opposite-party husband that his younger brother was married only about a year ago while the applicant had left him some 3 years ago and was living with her father since then. The allegation of Panchayat sitting at the instance of the applicant's father was denied. The allegation that the applicant was turned out by the opposite party from his house was also denied; instead it was alleged that she had left with her father's people of her own accord, willingly and putting on and taking away all her ornaments. It was then alleged that the true fact was that the opposite party and his father went to the applicant's father's place many a time thereafter and on his refusal to send her he even ' went with his people to bring her back but the applicant refused to come with him and even treated him and his people badly. It was then alleged that a notice was given by the opposite party By registered post acknowledgment due to the applicant to come back and live with him; the notice was received but the applicant did not come. The further allegations made by the husband opposite-party are that the applicant wife's father is a thief against whom there had been several cases and he had even been convicted and that it had come to light that the applicant's father had sold her jewellery, and now wanted to sell the applicant as also heir daughter and also wanted that by instituting the proceedings for maintenance he may possibly get more money. The opposite party has then proceeded to offer to maintain the applicant his wife and the daughter because, he knew that the proceedings had been got instituted by the applicant's father by force but he, the opposite-party was not prepared for all this, that is, the applicant may live with her parents or elsewhere and he should bear her expenses. His further allegations were that the husband of his sister Smt. Bholi did not take away to live with him at which she had instituted two proceedings against her husband and he, the brother-in-law of the opposite party had got the present proceedings instituted against him in order to compel him to get the said cases filed by Smt. Bholi withdrawn. About his means, the opposite-party alleged that they were not such as alleged by the applicant. He only made earthen pots and did not have a single biswa of agricultural land though his father had some 10-15 bighas of agricultural land but the land was not good and the family being large, its expenses were high. The learned Magistrate believed the applicant-wife's case and held that she had been ill-treated by the opposite party husband and was justified in living separately from him with her father. The husband's case that he had gone to fetch the wife a number of times was dismissed by the learned Magistrate with the observation that the husband did not take any legal proceedings for compelling the wife to come and live with him for three years which showed that he thought the wife's separation to be in his own- interest; and there was no point in his going to fetch the wife again after her refusal to live with him which showed that the story had been concocted for the purposes of the case. With regard to the inability of the wife to maintain herself, the learned Magistrate took note of her statement that she could work and did work but that, according to the learned Magistrate, did not lead to the inference that she could maintain herself. According to the learned Magistrate she was not capable of maintaining herself and her daughter in view of the social conditions. He observed that it was only good of a married woman to behave thus if she has regard to the social condition; that it was easy to accuse and attack another person but she was an uneducated villager belonging to the backward classes, she had a pure heart and it could not be said that she was capable of maintaining herself, and she was accordingly entitled to a maintenance allowance. As to the husband's-means, the learned Magistrate found that he had increase from making utensils and some agricultural land also and he was young and was quite capable of maintaining his wife and her daughter. He could extend his trade according to his needs. He was also responsible for the maintenance of his wife and daughter and the education of his daughter. The learned Magistrate further found that having regard to the status of the parties the applicant wife1 was entitled to, and, accordingly directed the opposite party husband to pay, a maintenance allowance of Rs. 75/- per month. On revision by the husband, the learned Sessions Judge did not go into the question whether the findings and the order of the learned Magistrate were in any manner incorrect, illegal or improper, and whether the proceedings taken by him were in any way irregular, but proceeded to examine the case afresh as if he was trying it originally, and came to the conclusion that the wife had failed to prove that she was treated cruelly and deserted by the husband, rather she had herself left her husband's house and is not prepared to live with him even today as is apparent from her cross-examination'. The learned Sessions Judge further observed that she did not specifically allege in the application that she is unable to maintain herself; that on the other hand she had admitted in her cross-examination that 'she can work and she does work'; and that therefore, the husband 'rightly argued that she is able to maintain herself, and to this the learned Sessions Judge has added the observation that 'the parties, are Kumhars by caste. At the end the learned Session Judge has remarked that 'all these points have not been considered properly by the learned Magistrate'. On these findings the learned Sessions Judge allowed the revision and set aside the order of the learned Magistrate. Learned counsel for the wife who is. the applicant in this Court urged: firstly that the observation of the learned Sessions Judge that the wife did not specifically allege in her application that she was unable to maintain herself appears to be based on a misreading thereof for, according to the learned counsel, she did specifically allege therein that she is unable to maintain herself; and further that the inference drawn by the learned Sessions Judge from her statement in cross-examination to the effect 'mai kam kar sakti hun aur karti hun', that she wag able to maintain herself was based on a mis-construction of the meaning of that sentence by isolating it from the content in which it was said. Learned counsel urged that an admission had to be taken as a whole, and the learned Sessions Judge acted improperly in shearing the quoted words from the context in which they were spoken by the wife during the course of her cross-examination. Learned counsel also put forth the same argument with' reference to the observation of the learned Sessions Judge that in view of the wife's statement in her cross examination, she is not prepared to live with her husband even now, for, the statement made by the wife was, 'chuki mera pati mujhko marta hai isliye mai uske sath rahne ko tayar nahi hun'. Learned counsel further urged that the appraisal of the evidence made by the learned Sessions Judge on the question whether the treatment of the husband towards the wife was cruel and whether he was guilty of having deserted her, was equally improper and incorrect and that the findings arrived at by him were not only against the weight of the evidence on the record, but were grossly incorrect, improper and illegal too. Mr. Jagdish Singh, learned counsel for the husband who is the opposite party in this Court, contended that Section 125 of the Code of Criminal Procedure spoke of the husband as a person 'having sufficient means', while it spoke of the wife as a person 'unable to maintain herself and that, therefore, what had to be seen by the Court in deciding whether the wife was unable to maintain herself was not that she had no means or property or income from which she could maintain herself but whether she had the capacity of making a living if she duly and properly exerted herself in accordance with her physical and j or mental abilities. His next contention was that so far as the husband was concerned, only his property or income from property, or such income as he was normally earning from his employment or occupation, could be taken into account in determining whether he had sufficient means or not to maintain his wife, and income from property not owned by him could not be taken into consideration in determining his means. The next point urged by the learned counsel was that both the husband and the wife were working as Kumhars and the wife had accordingly the same source and the same capacity of making a living as the husband, and the wife could not be said to be a person unable to maintain herself. In answer to a question put by me in this context Mr. Jagdish Singh contended that the inability of the wife to maintain herself must be absolute and if the wife was even partially able to maintain herself, that was sufficient to disentitle her to any order under Section 125 of the Code of Criminal Procedure, 1973. In support of the aforesaid submission learned counsel relied upon the ruling of the Supreme Court in Bhagwan Dutt v. Smt. Kamla Devi (A. I. R. 1975 S. C. 83 ). He further relied on sub-section (3) of Section 125 of the Code, and contended that the applicant wife had in the present case refused to live with her husband without any reason and was therefore not entitled to any maintenance allowance from the husband. Indeed, the reference made by the learned counsel to sub-section (3) of Section 125 of the Code was erroneous, as the present case is not one where the husband had, after an order of maintenance having been passed against him, offered to maintain the wife, but is a case where no order of maintenance has yet been enforced against him. Learned counsel probably intended to refer to sub-section (4) of Section 125 of the Code and I shall therefore proceed on that basis. Mr. Jagdish Singh also took me through the evidence and tried to show with all the ability at his command that the findings of the learned Sessions Judge in the impugned order under revision, are correct and proper. The last contention of Mr. Jagdish Singh, which he urged with great vehemence and some obduracy, was that the findings of the learned Sessions Judge, on revision from the Magistrate's order, were sacrosanct and cannot be questioned, examined or interfered with by this Court on a second revision like the present one. He did not, however, cite any case in particular in support of the said proposition, and only contended himself by saying that the proposition was so well settled by authorities and is so well known that it was not necessary for him to cite cases in support thereof. Having heard learned counsel for the parties, the first question which calls for determination in this case is whether the findings of fact recorded by the learned Sessions Judge are correct and proper and if not whether this Court should in the exercise of its revisional jurisdiction interfere with the same. It is only after the facts are settled that the law bearing on the matter could be properly applied. Under S. 397 of the Code of Criminal Procedure, 1973, the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purpose of satisfying itself 'as to the correctness, legality or propriety of the finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court This Court had admitted the revision and must have done so as is the practice in this Court, after satisfying itself that the case was arguable. The record was thereafter sent for. According to the plain words of Section 397 (1. A. I. R. 1975 S. C. 83) it is the duty of this Court to examine the record of the inferior criminal court and satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity the proceedings of the inferior court. Having done so, this Court may, according to Section 401 (1. A. I. R. 1975 S. C. 83) in its discretion exercise any of the powers conferred on a Court of "appeal by Sections 386, 389, 390 and 391. Section 465 of the Code further provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a Court of Appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error or irregularity in-any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby, and in determining whether any such error, omission or irregularity in any proceeding under the Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. These provisions show that the jurisdiction of a revisional court expends even to interfering with findings of fact. Indeed the Supreme Court has in the State of U. P. v. Kailash Nath Agarwal (2. A. I. E. 1973 S. C. 2210 at p. 2216 para 21), said that the power given to a court under Section 435 of the Code of Criminal Procedure, 1898, is given to call for and examine the record of any proceeding before any inferior criminal Court for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed or as to the regularity of any proceedings of such inferior court. But that is not to say that a court of revision should start with appraising the evidence on going through the record of the inferior criminal court and having arrived at its own conclusions on an appraisal thereof to interfere with or alter and reverse the findings and orders of the inferior criminal court on the basis of its own findings. The proper approach for a revisional court is to first look at the findings and order of the inferior criminal court and then satisfy itself whether they are not incorrect or improper as to have occasioned a failure of justice. The rule is also well settled that even an appellate court does not lightly interfere with the findings of fact arrived at by an inferior court on an appraisal of oral evidence for, the appellate court has only the written record before it while the trial court has had an opportunity of watching the demeanour of the witnesses while recording their evidence and the conduct of the parties during enquiry or the trial, and that being so, the findings arrived at by the trial court on an appraisal of the evidence are entitled to great respect. The appellate court interferes with the findings of the trial court only if its findings that the conclusion arrived at by the trial court are patently inconsistent with some fact or material circumstances which has an important hearing on the case and which is either admitted or proved beyond any doubt. Of course if a finding of fact is based on no evidence or is otherwise illegal or perverse, the appellate court and a revisional court does more readily interfere with it- I am, therefore, of the opinion that the last contention raised by Mr. Jagdish Singh as an absolute proposition of law that the findings of an inferior criminal court are sacrosanct and can never be interfered with by this Court in a second revision, is not sound for being too widely stated. The correct position appears to be that while this Court may as a court of revision interfere even with a finding of fact it does not normally do so unless there are good and weighty reasons and the finding if allowed to stand would result in a failure of justice. It is the vary amplitude of the jurisdiction and powers of this Court in a criminal revision which required restraint in their exercise. But the restraint with which this Court exercises its revisional jurisdiction in a criminal matter does not cut down or limit its jurisdiction of interfering with or altering or reversing an incorrect finding of fact which it clearly possesses on the very language of Section 397 of the Code of Criminal Procedure, 1973. The same principles of exercise of its revisional jurisdiction by this Court apply to the exercise of revisional jurisdiction by a sessions court, the power of the two courts being concurrent in so far as the order of a criminal court inferior to them both is concerned. In a case like the present one where a revision has been filed from the order of the Sessions Court on a revision under Section 397 of the Code of Criminal Procedure, 1973, interfering with and reversing the findings and the order of the Magistrate's court, this Court may apply the same tests to the findings and order of the court of sessions which the latter was required to apply to the findings and orders of the Magistrates court before interfering with or reversing the same, as the court of the sessions is inferior to this Court. And, if this Court finds that the court of sessions did not act properly or in accordance with law in the exercise of its revisional jurisdiction when it interfered with and reversed the findings, which are admittedly of fact, and the order of the Magistrate passed thereon, it may certainly interfere with and reverse the findings and order of the sessions court if this Court also finds that not doing so would occasion a failure of justice. Now, coming to the order under revision, as observed above, the learned Sessions Judge did not go into the question whether the findings and the order of the learned Magistrate were in any manner incorrect, illegal or improper and whether the proceedings taken by "him were in any way irregular, but proceeded to examine the case afresh as if he was trying it originally. The learned Sessions Judge did not also consider the question whether the findings and the order of the learned Magistrate had occasioned a failure of justice before interfering with and reversing them. The approach of the learned Sessions Judge was in this view of the matter contrary to law. However, before interfering with, altering or reversing the findings and order of the learned Sessions Judge, this Court must satisfy itself that the findings recorded by him, which are of fact, and the order passed on their basis, are incorrect, improper of illegal and that not to interfere with or alter or reverse them would occasion a failure of justice. Having taken through the order of the learned Sessions Judge and the record of the proceedings before the Magistrate in some detail, I find that the following facts stated in the judgment of the learned Sessions Judge are contrary, to the material on the record (1) The Panchayat which is said to have been convened to bring the husband opposite-party to reason ultimately ended in smoke (2) the husband did not maintain the wife 'for the last more than seven years (3) in her application the wife alleged that she has been beaten and turned out of the house by the revisionist but 'when she came in the witness-box she stated in the cross-examination that she left the place of her husband on her own accord; (4) that evidence of Sripal (P. W. 3) and Sitaram (P. W. 2) is based on hearsay'; (5) Smt. Binduli, the wife 'is not believe-able because firstly, in the application she alleged that she was turned out but in the cross-examination she had to admit that she left her husband's house stealthily by herself, and secondly, she alleged in the application that her husband had 'developed illicit relations with Smt. Shanti, the wife of his younger brother Kaushal, which, according to the learned Sessions Judge was a false allegation; (6) the reliance placed b: the learned Sessions Judge on the notice (Ext. Kha-1) which is dated April 28, 1977 and was thus sent after the institution of the proceedings under Section 125 on April 27, 1977 for holding that the wife had refused to go to the husband; (7) the inference drawn by the learned Sessions Judge about the character of the wife's father on the basis of what husband stated in the cross-examination and certified copies of two documents relating to the proceedings under Section 110 of the Code of Criminal Procedurt against one Ganga Deen, son of Adaru, which were filed on November 23, 1977 after Ganga Deen, the wife's father had already been examined on November 7, 1977 and which were clearly not admissible in evidence as Ganga Deen (P. W. 4) had not been confronted with them as required by Section 145 of the Indian Evidence Act; and lastly the assumption that the wife 'herself left; the house of her husband, and is not prepared to live with him even today which was Said to be apparent from her cross-examination. As to the first item, according to the case set up by the wife in her complaint and as deposed to by her and her witnesses, consistently with each other, it was when the crued treatment meted by her husband became unbearable and the husband did not listen to her entreaties for bringing his connection with his younger brother's wife Smt. Shanti to an end, that she complained to her father-in-law and when even that had no affect she sent for her father and complained to him, whereupon her father came with respectable relatives Sitaram, Sripal, Mahabir and other respectable persons to village Bilanda and pleaded with her husband and her father-in-law against the misconduct of the husband whereupon the husband assured them all that he would break his connections with Smt. Shanti, and the wife's father and his party returned back. The story of the subsequent beatings and cruelty and of the wife's running away for her life to her father's place on having been turned out by the husband of his house after being given a severe beating is later in point of time. According to the evidence of the wife and her witnesses, the time of the Panchayat was fixed some four years before the date when the statements were recorded and the time of her final departure from the husband's place for her father's has been fixed at three years,. It appears from the evidence of the wife and her witnesses that the so-called Panchayat did net end in smoke, on the other hand the wife's case was that the husband assured her father and relatives that he will desist from his misconduct in future and that the wife did stay on with the husband for about a year thereafter although it is also the wife's case that after the so-called Panchayat the husband, instead of desisting from his misconduct, treated her more harshly and more cruelly which led to her ultimate departure from the husband's home some three years before the evidence was recorded. As to the second fact assumed by the learned Sessions Judge that it was the wife's case that the husband did not maintain her for the last more than seven years, and that she was living away from him for the last more than 7 years, it is clear from the record that she left the husband's place and was living separately for the last about three years. On this point the only evidence to the contary is the first sentence of the statement on oath made by the husband Ram Sajiwan in this examination-in-chief to the effect that Smt. Binduli was his wedded wife, that she lived for about five to five and half years with, him after the marriage and that she was not with him for about seven to seven and half years. It is, however, noticeable in this context that the husband had in his written statement not controverted the fact that the parties were married in the year 1968, that is, about 9 years before the year 1977 when the proceedings were taken in the Magistrate's court, and had in paragraph 4 of his written statement stated specifically that the wife had left his house about three years before and was living with her father, the date of the written statement being May 19, 1977. Moreover, the husband's witness Janki, who appeared as D W. 3, and on whose statement the learned Sessions Judge appears to have placed implicit reliance clearly stated in his cross-examination that the wife was living in the same village in which the witness lived in her father's house for the last three years. The statement of this witness was recorder on January 4, 1978. The learned Sessions Judge did not take notice of these facts when he assumed that the wife had been living away from her husband for the last more than seven years or that the husband had not maintained her for the last more than seven years. The next item is the assumption made by the learned Sessions Judge that the wife had in her application alleged that she had been beaten and turned out of the house by the husband, but on oath she had stated that she left the place of her husband of her own accord. This is again contrary to the record. In the application the statement of the wife-runs thus: " Mustagisa ko aik din Musammat Shanti kay kahnay say kan mara pita wa jabardasti ghar say nikal diya jisko gaon kay kafli aadmion nay dekha. Mustagisa jan bach" a kar apney pita kay ghar kisi prakar apni larki kay saath chali aayee kyon ki larki kay saath bhi uskay pati ka beohar theek na tha yadi chali na aati tou awashya jan say uska pati mar dalta tub say woh apnay pita kay yahan teen sal say reh rahi hai". Her statement in the examination-in-chief on this point runs thus: " Meray aadmi nay mujhay bay-andher mara aur marpeet ker mera sara zeber laiker mujhay ghar say nikal diya. Phir main apnay maikay chali aayee main teen sal say apnay baap kay yahan reh rahi hoon. " and in cross-examination it runs thus: " Merai pati nay jub mujhay sasural main mara tha tabhi mein bitia ko laiker chupchap chali ayee. Maikay mei apnay maan baap say marpeet key baaray mein bataya wa chotain dikhaya. " These statements of the wife do not contradict each other and the learned Sessions Judge appears to have wrongly assumed that while in her application she alleged that she had been beaten and turned out of the house by the husband but when she came in the witness-box she stated in her cross-examination that she left the place of her husband of her own accord. She did come away from the husband's house, but the immediate cause of her doing so, was the alleged fact that she had been beaten and turned out of the house. The above would also show that the first ground on which the learned Sessions Judge found the wife's statement to be unbelievable is contrary to the material on the record. The second ground on which the learned Sessions Judge disbelieved the wife was that her allegation that the husband had developed illicit relations with Smt. Shanti Devi was a false allegation. In doing-so, the learned Sessions Judge has acted illogically. The wife had alleged that her husband had developed illicit relations with Smt. Shanti Devi. That allegation may be true or false but one cannot disbelieve the statement of the wife on that point or on other points simply on the ground that the allegation was false, for this amounts to begging the question. It may be here noticed that the learned Sessions Judge placed reliance on the statement of Janki (D. W. 3) alleged to be the grand father of Smt. Shanti Devi, for holding that the allegation of illicit connection between her and the applicant's husband is false. In doing so the learned Sessions Judge has omitted to properly appraise the evidence of (D. W. 3) Janki, and has not taken into consideration the fact that when asked about the place where Kaushal, the husband of Smt. Shanti Devi and the younger brother of the applicant's husband was employed, he stated that he did not know that Kaushal was in service at Kanpur and could not even give the exact age of Kaushal, his own grand son-in-law, when he stated that his age would be 28-30-32 years, which statement was also contradictory and inconsistent with the husband's case that Kaushal was married only about a year ago and was younger than himself, the age of the husband being, according to his own statement on oath as D. W. 1, 25 years and that of his brother Kaushal being 18-20 years on November 23, 1977 when he made that statement. Indeed having read the entire evidence of Janki (D. W. 3) it appears to me that he was a got up witness. He was a resident of Jamrawan the place where the wife's father lived and was not a resident of the husband's village Bilanda, yet he claimed to know every thing about what happened at the husband's place as facts within his personal knowledge. The comment made by the learned Sessions Judge that the evidence of Shripal and Sitaram is based on hearsay and the further comment that they were interested witnesses, is in the circumstances of the case not justified. These witnesses did depose to the facts which they had seen when they had gone to the husband's village along with the wife's father some four years before. They deposed as to the wife's condition on the basis of their own observations and also the injuries on her body which, they said they saw. They also deposed as to the fact of admission made by the husband Ram Sajiwan of his illicit connection with his brother Kaushal's wife, and promise to give it up in future. As to their being interested witnesses, it is sufficient to observe that in a case of this nature it, is only the relatives of the parties who know about the facts and their evidence cannot be rejected only on the ground that they happen to be related to the party who produces them. Their evidence has to be judged on its intrinsic worth and cannot be brushed aside simply on the ground that they are interested witnesses. About the husband's case that he had gone to fetch his wife but she refused to come, suffice it to say that the husband Ram Sajiwan stated in clear terms in his cross-examination that he had not visited the wife's village for the last four to five years and that he had gone earlier but had not gone there for the last three-four years. If that statement of the husband on oath is to be believed, the whole statement of Janki (D. W. 3) and of the husband, that the husband had gone to the wife's village to fetch her after her having left the husband's place is false for, it has been seen above that according to the admitted case of the husband, the wife had left his place only about three years before. With regard to the evidence of the notice Ext. Kha-1, relied upon by the learned Sessions Judge it has to be observed that the notice is dated April 28, 1977. It is claimed to have been served on May 2, 1977 according to the acknowledgment card. The wife denied her thumb impression on the acknowledgment card. Be that as it may, the notice if it was sent, was sent one day after the application under Section 125 had been instituted by the wife on April 27, 1977, and the contents of the notice tell a tale entirely different from that set up by the husband in his written statement and admitted or found proved as above. The notice says that the parties were married some twelve or thirteen years before its date and that the wife, had left the husband's place some five years ago along with her father and all her jewellery and had not returned thereafter inspite of repeated attempts to bring her back. In view of what has been discussed above it is apparent that no reliance could have been placed on such a notice as it appears to have been alleged to have been sent, only by way of Peshbandi in order to make out a case that the husband was willing to bring the wife back and that it was she who was not willing to come and live with him. With regard to the evidence of bad character against Ganga Deen, the wife's father which has been believed by the learned Sessions Judge and on the basis of which he has found that the wife's father wanted to extract money from the husband and had, therefore, detained the wife, it appears to me that the learned Sessions Judge has not scrutinized the evidence properly: Firstly as stated above, the two documents relating to the conviction or rather the order binding down one Ganga Deen, son of Adaru, under Section 110/112 of the Code of Criminal Procedure, to be of good behaviour, is not admissible to contradict the statement of Ganga Deen P. W. 4, that no such order had ever been passed against him: Secondly it appears from the statement of Ganga Deen P. W. 4 himself, and Sitaram (P. W. 2) that there were more Ganga Deens, in village Jamrawan, than one whose father's name was Adaru. Indeed Sitaram (P. W. 2) specifically stated that one of them was a Pasi and the other was a Kori. Ganga Deen the wife's father is a Kumhar. No evidence was led by the husband to rebut these facts when he sought to introduce the two certified copies on November 23, 1977, to show that Ganga Deen the wife's father, had been bound down under Section 110/112 of the Code of Criminal Procedure in an attempt to prove that Ganga Deen did not bear a good character. One more, rather important aspect of the case is that according to the questions put in the cross-examination to Ganga Deen (P. W. 4), it appears to have been the husband's case that Ganga Deen had been convicted for offences even before the year 1968. The proceedings and the order under Section 110|112 of the Code of riminal Procedure of which certified copies have been filed commenced on October 2, 1968 and ended on admission of the accused on October 11, 1968. Now it has been seen above that the parties were married in the year 1968. It stands to reason that if the applicant wife's father Ganga Deen was such a notorious bad character, the husband should not have married the applicant. There is no presumption that even if Ganga Deen was bound down in the year 1968, he continued to be a person of bad character in the year 1974 when the separation the parties took place. Lastly, it is not wholly outside the realm of possibility for a man of bad character to be wholly devoted and good towards his own children and family. I am, therefore, of the opinion that the inference drawn by the learned Sessions Judge that the wife was being detained by her father on account of his bad character and in order to extract money from the husband, is contrary to the proved facts on the record and is un-sustainable in law. I am, for the reasons given above, satisfied that the findings recorded by the learned Sessions Judge are wholly incorrect and improper, some of them are illegal too. The penultimate finding referred to above is illegal. Further, having had to go through the entire evidence on the record in the course of arriving at the aforesaid conclusion, I am satisfied that the wife's case was true and that of the husband was untrue. The wife appears to have been treated cruelly and turned out of the house by the husband. The cruel treatment meted out to her and the apprehension that it was not safe for her to continue to live with the husband was reasonable, and afforded a good ground for her living separate from the husband. Now about the alleged ability of the wife to maintain herself and the husband's lack of means which was urged as the first contention on behalf of the husband, by his learned counsel Mr. Jagdish Singh. The learned Sessions Judge has also observed in his order that the wife did not specifically allege in the application that she is unable to maintain herself. That is based on a misreading of the application for she has made the following allegations in the last but one paragraph of her application: " Mustagisa kay pita ki mali halat theek nahin hai ki woh mustagisa wa uski 7 barshie putri ka palan poshan kar sakey. Is samai mustagisa ki putri Urmila Devi padhnay yogya hai paisay kny abhao kay karnn woh school nahin ja pati. Mustagisa kn pati mustagisa wa uski larki ko apnay saathrakhkar uska nirbah wa pal an poshan karnay ko taiyar nahih hai. Balki haal main Jamrawa aaker mar a peeta wa jan say maarnay ki koshsish ki. Mustagisa jawan aurat hai. Samajik Parasthi-thiyon kay karan woh apnay wa apni larki ka palan poshan haitu soyem kama nahin sakti. " As to the observation that in her cross-examination she had admitted that she can work and she does work, I find that the criticism made by the learned counsel for the applicant has force. This was the last sentence of the first paragraph of the wife's statement on oath under cross-examination. The context in which it was made is quoted below: " Meri sasural mein sas sasur hein. Merey 2 nandain hein. Unmein say aik ki shadi ho gayee hai. Meray sasural kay yeh sabhi wayakti aik hi makan mein rehtay hein. Mein kaam kar sakti hoon aur karti hoon. " The context in which this statement was made appears to have been whether she was able bodied and did the work which a woman of her status ordinarily does in the house. It has no reference to her working for living outside the house. The husband also stated under cross-examination in his statement on oath, that she used to work with him so long as she lived at his place and also used to serve her father-in-law and mother-in-law. It appears to me that the wife did work along with the men of the house in making a living for the family as a Kumhar. The question, however, is whether she could be said to be a person unable to maintain herself. To work with the husband or with the parents for a Kumhar woman is quite a natural thing, but even while she works in this manner it is her husband or father who is said to be earning member of the family. The fact that, a woman of Kumhar caste is capable of and is working in this manner does not, however, lead to the inference that she can make a living if she had to live all alone and by her work alone. Conceivably the making of earthen pots by a Kumhar involves distinct operations and the sale of the earthen pots after they are burnt and making an income out of the trade also involves different kinds of operations. The wife stated that due to social circumstances and the penurious condition of her father she was unable to maintain herself while living separate from her husband. The learned Magistrate has believed the wife on this point. I cannot say that he acted incorrectly or improperly or illegally in doing so. The contention raised by Mr. Jagdish Singh that inability of a wife to maintain herself has to be judged in the light of her capacity to make a living, is not sound. A wife may be quite capable of making a living if she had the opportunity, but in fact she may be unable to get employment. In that situation it would be impossible to say that the husband should not be called upon to maintain her even if she is justified in living separately from him simply because she could, if she obtained employment, make a living, good enough to maintain herself. The present is not a case where the wife may be unwilling to do and not doing the work which she is capable of. But the fact is that that is not good enough for her maintenance while living separate from her husband. The duty to maintain his wife and minor daughter is primarily that of the husband and if he neglects or refuses to perform that duty the wife becomes entitled to approach the criminal court to save herself from destitution and vagrancy. The amount of maintenance allowance ordered by the learned Magistrate is only Rs. 60/- per month for the maintenance, that is food and clothing and residence of the wife and the daughter both, and Rs. 15/- per month for the daughter's education. The amount is too small, looking to the present day condition to call for any interference whatsoever. The contention raised by Mr. Jagdish Singh that the ability of the wife to maintain herself must be absolute, has only to be stated to be rejected, for if the wife is able to maintain herself partially that she has to be taken into account in fixing the amount of maintenance in the light of the law declared by the Supreme Court in Bhagwan Duti v. Suit. Kamla Devi (Supra) cited by Mr. Jagdish Singh himself. It cannot be a ground for rejecting the wife's claim for maintenance altogether, even if is found that it is insufficient to keep her body and soul together and non-allowance of further maintenance, would drive to vagrancy and destitution. With regard to the husband's own means, the contention raised by Mr. Jagdish Singh was that the agricultural land belonged to the husband's father and not him. Assuming that it is so, the husband is living with his father as a member of a joint family. All members of the family worked together, not only as cultivators but also as Kumhars which is the family trade. Under the circumstances it is impossible to say that the entire income of the family whether from agriculture or from making earthen pots cannot be taken into consideration, of course after allowing for the obligation of the family to maintain all its members in determining the husband's means for maintaining his wife the whole thing has to be looked into from a practical point of view, the object of these proceedings being, as observed by the Supreme Court, to prevent a wife from falling into beggary and destitution. The question remains, whether this Court should yet interfere. Does the order under revision occasion a failure of justice? The facts and the circumstances of the case brought out above, loudly speak of the failure of justice occasioned by the order of the Sessions Court. This Court would be failing in its duty if the order of the Sessions court is not reversed and that of the Magistrate's court restored. In the result this revision must be allowed. The order of the Sessions Court is set aside and that of the Magistrate's Court is restored. .