Entitlement to maintenance based on desertion requires evidence of voluntary abandonment, which was not established in this case.

Heard Ms. Neerja Chaubey, learned counsel for the petitioner. None for the respondent.

2. The applicant is wife of the non-applicant. They got married on 10th June, 2006 The non-applicant had divorced his earlier wife and thereafter he was married to the applicant. The applicant had filed proceedings before the learned Magistrate for grant of maintenance under Section 125 of the Code of Criminal Procedure. The applicant had alleged that the non-applicant had subjected her to cruelty. It was further alleged that family members of the non-applicant also were party to the alleged offence. The first information report under Section 498-A was lodged against the family members of the non-applicant. It was also alleged that the father of the non-applicant had demanded Rs.50,000/-(Rs. fifty thousand only) from the father of the applicant to buy a Hero-Honda motor cycle. The case of the applicant before the trial Magistrate was that, since father of the applicant was unable to fulfill the demands of father of the non-applicant, she was deserted by the non-applicant and was left at the mercy of her father.

3. The learned Magistrate, after recording evidence of the applicant and non-applicant, had come to a conclusion that the applicant had no source of income. The learned Magistrate had also come to a conclusion that the applicant had not been able to conclusively establish the net monthly income of the non-applicant. However, after taking into consideration that the non-applicant had two establishments and other source of income, the trial Magistrate had come to the conclusion that the non-applicant was capable of paying Rs.three thousand per month to the applicant by way of maintenance and accordingly the order was passed by the learned Magistrate.

4. The said order was challenged by the non-applicant by filing revision application before the Sessions Court. The learned Sessions Court came to the conclusion that though the applicant had no source of income and though the non-applicant was able to give the amount of maintenance, awarded by the learned trial Magistrate, the applicant was not entitled to get the same as the applicant was not deserted by the non-applicant. In the opinion of the learned Sessions Judge, it was the applicant who had deserted the non-applicant and that she was not willing to stay with the non-applicant. The learned Sessions Judge, therefore, came to the conclusion that the non-applicant had not neglected the applicant and therefore, the applicant was not entitled for maintenance.

5. I have gone through the evidence of the applicant, particularly cross-examination. It appears that the learned Sessions Judge has passed this judgment mainly on the statement (Exh.35) made by the applicant before the police (Social Service Branch) during the course of inquiry of her complaint to the effect that she did not want to stay with the non-applicant and that she wanted divorce. The learned Sessions Judge appears to have read the particular statement of the applicant out of context. The whole statement of the applicant should have been taken into consideration by the learned Sessions Judge to consider that whether the applicant has been deserted or she had voluntarily left the house of the non-applicant. I have gone through the statement, a part of which has been referred by the learned Sessions Judge in his order. The said statement, in fact, does not indicate as to what could be the reason for the applicant to stay with her father instead of staying with the non-applicant. The learned Advocate for the non-applicant, during the course of cross-examination, has conveniently brought that particular part of the statement on record. The learned Sessions Judge, in fact, should have taken into consideration the whole statement, if at all he wanted to consider the said statement.

6. Apart from this, there is no other evidence to indicate that it is the applicant who had voluntarily left the house of the non-applicant. I