CHAND BISWAL @ CHANDURI BISWAL Vs. BANCHHANIDHI BISWAL

JUDGEMENT

(1.) This revision is directed against the order dated 2.9.2003 passed by the learned 1st Additional Sessions Judge, Aska in Criminal Revision Petition No. 23 of 1999 (110 of 1990 GDC) setting aside the order dated 30.7.1998 passed by the learned J.M.F.C., Aska in Misc. Case No. 31 of 1997 by which the opposite party-husband had been directed to pay Rs. 200/- per month to the petitioner-wife towards her maintenance for the date of filing of the application under Section 125 of the Cr.P.C.

(2.) Till 1979, petitioner and opposite party along with their four daughters and two sons were residing in Nagaland where opposite party was employed. Three of their daughters got married by 1985. In order to get the daughters married and sons educated, the petitioner started residing in the opposite party's native village Gudiali near Aska. Opposite party and the elder son remained in Nagaland. At present the petitioner is residing in Aska, whereas, after his retirement in 1996, the opposite party is living at Gudiali. Their youngest daughter married in 1998. It was alleged in the application for maintenance filed by petitioner that opposite party not only subjected her to physical assault and mental torture but also stopped to provide food and clothing to her. He drove her out of the house in 1994. It was averred that opposite party earned Rs. 7,000/- from vegetable business and received Rs. 2,000/- towards pension per month in addition to income from agricultural land and that she has no income and residing in a rented house. Opposite party resisted the application for maintenance pleading that during his absence from village Gudiali petitioner went astray and led an adulterous life with one Ragunath Biswal, a widower belonging to village Ganganathpur. The youngest daughter and youngest son, who were living with their mother, objected to her immoral conduct. Ultimately, petitioner left the house and started living with Ragunath Biswal in Aska. Also, opposite party denied to have any income from agriculture, business and pension. In order to substantiate their assertions, petitioner examined two witnesses including herself as P.W. 1 and opposite party examined four witnesses including himself as 0.P.W.2, his eldest son as 0.P.W.1 and youngest daughter as O.P.W. 4.

(3.) In awarding maintenance in favour of the petitioner the learned J.M.F.C, Aska appears to have disbelieved adultery on the part of the petitioner. It was held that opposite party neglected to maintain her. On reappraisal of evidence on record, learned revisional Court took the view contrary to the finding of the learned J.M.F.C. and held that petitioner was living in adultery for which she was not entitled to maintenance in view of the provision under Section 125(4) of the Cr.P.C.