( 1 ) THE non-applicant herein filed Misc. Criminal application No. 105 of 1997 before the Judicial Magistrate First Class, Wardha under section 125 of Criminal Procedure Code for grant of maintenance allowance against the present applicant.

( 2 ) ACCORDING to the wife, after the marriage, she went to matrimonial house. However, she was ill treated, the husband refused to maintain her and she was compelled to reside with her parents. She had thereafter, filed an application for maintenance before the Judicial Magistrate First Class, Wardha, which was allowed. Revision Application filed by her husband was dismissed and the wife was required to take out proceedings for execution of order of the maintenance. During pendency of execution proceedings, according to the non-applicant No. 1, the present applicant assured her cohabitation, proper treatment etc. and she returned to her matrimonial house. On return, she had learnt about the present applicants having married and having begotten one son and one daughter from the second wife. Even after return, according to the non-applicants, husband had ill-treated her and she, therefore, left the matrimonial home on 18-1-1997. She was even required to lodge a police complaint on account of beating by the applicant and his second wife. The offence was registered under section 498-A of the Indian Penal Code vide Crime No. 9 of 1997.

( 3 ) IN the maintenance application, the petitioner claimed that the husband owned 3 hectares 38 R land at village Dhotra, Tah. Kalamb, District Yavatmal and that he earned annual income of Rs. 1,00,000/-, he owns 16 she-bufallos and did the milk business and earned additional Rs. 5000/ -. The applicant required maintenance @ Rs. 5007- per month.

( 4 ) THE application by the wife was opposed by the present petitioner where he admitted the fact of marriage, award of maintenance in first application filed by the wife @ Rs. 75 per month, he, however, denied that there was any compromise with the applicant came to his house for cohabitation. He admitted that from 15-8-1984, the present respondent had left matrimonial house and started residing in separate block near the house of her parents. He denied sexual relations with the Original applicant wife and denied paternity of the applicant no. 2 Sharda and disputed the liability to pay maintenance on account of the adulterous behaviour of the wife. He also denied the income as represented by the wife respondent No. 1 herein.

( 5 ) IN the trial, the non-applicants led evidence of her own testimony, school Leaving Certificate of her daughter Sharda, 7/12 Extracts of landed property of husband and examined two more witnesses namely Sonabai Bagde and Vimalbai Bonde and husband examined himself and examined three witnesses namely Mukesh Bharsagade, Dnyaneshwar Bhagade and Ghansham lanjewar.

( 6 ) THE Learned Trial Judge granted the application of the non-applicant no. 1 herein partly awarding maintenance of Rs. 400/- per month to the non- applicant No. 1 herein, while the claim of the maintenance of the non-applicant no. 2 i. e. Sharda was rejected holding that the applicant wife had failed to prove that Sharda was born from matrimonial ties between her and the present applicant. On the basis of the facts of the case and evidence, the trial Court found that the husband had no access to the wife and therefore, the applicant No. 2 was not conceived from her husband and the applicants i. e. the non-applicants 1 and 2 were not entitled for benefit of section 112 of Evidence Act. While awarding the maintenance to wife, the trial Court, however, found that the husband has not pleaded that wife i. e. the present non-applicant No. 1 was living in adultery and therefore, that the applicant wife was entitled for maintenance allowance.

( 7 ) BOTH sides have felt aggrieved due to the judgment of the trial Court. The non-applicant No. 2 as represented through the non-applicant No. 1 filed a revision Application No 49 of 1999, while t

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