SALMA Vs. MOHAMMED IQBAL

JUDGEMENT

(1.) THIS is a wife's application under Section 482, Cr. PC against the order of the learned Addl. Sessions Judge, Bikaner, dated 9 -10 -1985 by which he upheld the order of the Munsif and Judicial Magistrate, Bikaner, refusing maintenance to her although by the same order the learned Addl. Sessions Judge had partly allowed the revision and granted a maintenance of Rs. 80/ - p.m. to the son.

(2.) THE petitioner Smt. Salma was married to the non -petitioner Mohammed Iqbal in May, 1978 and a son was born out of this wedlock in July, 1979. The non -petitioner had gone to South Arabia in June, 1979 and in his absence his parents did not look after the petitioner and therefore,she went away to her parent's house. Even after the return of the non -petitioner from South Arabia, he did not care to call her back and the did not provide for her maintenance and thus neglected her, An application under Section 125 Cr. PC was earlier filed in November, 1980 where upon the parties compromised and the non -petitioner took back the petitioner for sometime. Even there after the parents of the non -petitioner again in his absence turned her out in September, 1982. The non -petitioner who was at Riyad came back to Bikaner but did not call the petitioner nor provided for her maintenance and thus again neglected her. The petitioner was thereupon compelled to file the present application for maintenance for herself and her child. She alleged that the non -petitioner was working at Riyad and was earning about Rs. 3,000/ - p.m. She further alleged that she herself was not earning and had no source of livelihood. She claimed Rs. 500/ - for maintenace of herself and her child. The non petitioner denied the allegation of neglect although he admitted the marriage and the birth of the son. He further alleged that he had already divorced the petitioner and that she was free to go in a second marriage. He contended that the petitioner was capable of earning by tailoring and was not entitled to any maintenance. After framing the necessary issues and taking the evidence of the parties, the learned Magistrate rejected the application mainly on the ground that as the petitioner did not come in the witness box, it did not stand proved that she was unable to maintain herself. Aggrieved of this, the petitioner filed a revision before the learned Addl. Sessions Judge, who partly allowed the same and awarded a maintenance of Rs. 80/ - p.m. so far as the child was concerned but refused to award any maintenance to the wife solely on the ground that she did not come in the witness box to establish that she was unable to maintain herself. Aggrieved of the refusal of maintenance to herself, the petitioner has come up before this Court.

(3.) IT is urged by the learned Counsel for the petitioner that the learned Addl. Sessions Judge has most arbitarily refused to award any maintenance to the petitioner, solely on the ground that she did not enter the witness box and has brushed aside the other relevant evidence only on the ground that when the petitioner herself has not entered the witness box, the other evidence cannot be relied upon. He urges that this decision of the learned Addl. Sessions Judge should be set aside and either the case should be remanded for the evidence of the petitioner herself if deemed necessary otherwise on the material on record itself, she may be awarded reasonable maintenance. On the other hand, the learned Counsel for the non -petitioner has urged that the order of the learned Addl. Sessions Judge is correct and no interference can be made with it in exercise of the powers under Section 482,Cr.PC.