1. THIS criminal revision is directed against the judgment and order dated the 31st July, 1992 passed by the learned Additional Sessions judge, 2nd Court, Midnapore in criminal Motion No. 127/89. By his impugned order the learned Additional sessions Judge set aside the order dated 16th May, 1989 passed in M. R. Case No. 36/87 by the learned Chief Judicial Magistrate. By the said order the learned Chief Judicial Magistrate rejected the application of the wife under Section 125 Criminal Procedure Code for maintenance. The learned additional Sessions Judge however by his impugned order granted maintenance to the wife at the rate of Rs. 400/- per month from the date of filing of the application under Section 125 Cr. P. C. Earlier the wife in a civil suit, viz. O. S. 29/55 of the 2nd Court of Subordinate Judge, Midnapore obtained an order of maintenance at the rate of Rs. 80/- per month for herself against the husband. Subsequently the husband filed a Suit being T. S. No. 23/80 of the 1st Court of Subordinate Judge, Midnapore and obtained an ex parte decree against the wife. By that decree the husband obtained a declaration that the decree for maintenance passed against him in O. S. 29/55 was no longer binding on him and that the wife and the child were not entitled to get maintenance from him. It may be mentioned here that the child has since become major and the question of maintenance of the child is not a matter for consideration now. In the said suit the husband also got a permanent injunction restraining the wife from proceeding with the execution of the said decree of maintenance. The said ex parte decree was obtained by husband on 14th February 1989 It may be mentioned here that the father of the wife died leaving properties On the basis of a will alleged to have been executed by the father of the wife in favour of her brother a probate was obtained. Subsequently however it seems, the said probate was challenged on the ground that the will was forged and the probate was ultimately revoked. The litigation in that respect in its onward journey, as I understand, is still pending in the High Court.

2. BE that as it may, it appears that the maintenance decree earlier obtained by the wife in a civil suit was ultimately neutralised by the decree passed in the subsequent suit of the husband brought on the ground that on the revocation of the probate the wife inherited 1/6th share in the property left by her father. It was because of such changed circumstances the husband in the subsequent suit obtained the declaration that the wife was not entitled to get maintenance from the husband and the earlier decree was no longer binding on him. The learned Chief Judicial Magistrate rejected the application under Section 125 Cr. P. C. mainly on the ground of the said decree of the civil suit. The learned Additional Sessions Judge however held that the wife was entitled to maintenance. It appears that as regards, the question of having 1/6th share in the joint property of the deceased father of the wife, the learned Additional Sessions Judge was of the opinion that in ordering any maintenance the court shall have regard to the income of the applicant and not to her assets not yielding any return. The learned Advocate for the petitioner has relied upon the statement of the wife in evidence that from the property left by her deceased father there is income by way of rent from the tenants to the tune of rs. 6000/ -. The learned Chief Judicial Magistrate in his judgement took note of that statement in deposition and then made his conclusion that the wife having 1/6th share has however a monthly income of not less than Rs. 1000/ -. The learned Advocate for the petitioner also attracted my attention to a recent decision of this court in Shiv Shankar vs Sobhana Samanta, 1992 Cri.L.J. 2196 in support of his argument that the learned Additional sessions judge should not have set aside the finding and order of the learned Chief Judicial Magistra