A wife is entitled to maintenance under section 488, Cr. P. C., even if the husband offers to maintain her on condition of her living with him, if the Court is satisfied that there is just ground for doing so.

( 1 ) IN this criminal revision un- der sections 135 and 438 of the Criminal Procedure Code, the legality of the order of the learned Sub-Divisional Magistrate, Delhi, dated 6th May, 1967 is challenged.

( 2 ) IT appears that Smt. Sheila Rani presented an application under section 488, Cr. P. C. , for maintenance against her husband Shri Chander Parkash on the ground that she had been turned out of the house by her husband, who failed and neglected to maintain her. The parties were married and stayed together for some time and a child was also born from this wedlock. According to the wife, her husband was keeping with him his step-mother and it was mainly on this ground that he was usually cross with his wife and used to beat her on occasions.

( 3 ) THE faetum of marriage was admitted by the husband and he also expressed his willingness to maintain his wife provided she lived with him. In the evidence, the wife deposed that the husband was having a liason with his step-mother and the husband also in turn made a counter-allegation in the evidence against his wife of her having illicit relations with one Som Nath. The allegation of beating his wife was denied by the husband.

( 4 ) THE learned Magistrate, on appraisal of the evidence, came to the conclusion that a sum of Rs. 75. 00 per month should be paid to her by way of maintenance allowance from the date of the order. The infant child was directed to remain with the mother, she being his natural guardian. It may be pointed out that the wife had claimed maintenance at the rate of Rs. 100. 00 per month, but this was considered to be excessive.

( 5 ) THE husband approached the learned Sessions Judge on revision and Shri B. L Nagpal, Additional Sessions Judge, Delhi, dismissed the revision in limine on 6th September, 1967 with the following order --

"learned counsel for the petitioner has urged only that the amount awarded by the trial Magisterate is excessive. He has not referred to any evidence on the record to substantiate his assertion. No reason "to interfere. Dismissed in limine. "it is in these circumstances that the present revision has been preferred in this Court.

( 6 ) THE learned counsel for the husband has submitted in the first instant that there is no evidence on the record in regard to the income of the husband, with the result that the amount of Rs. 75. 00 per month has been fixed in an arbitrary manner. He has in order to substantiate his submission referred me to the relevant record. In his reply to the application of Smt. Sheila Rani, Cdander Parkash has pleaded that he is getting Rs. 891. 00 as his basic pay with other allowances and has got alloted a Government quarter for which he is already paying Rs. 18. 00 per month as rent besides electric and water charges. He has, however, not cared to specify the amount of the other allowances in his evidence also, he does not seem to have cared to give the details of his allowances which he gets in addition to his basic pay. He was the best person to know of his income and, therefore, to frenkly depose about the same. It is not controverted that he does help his father also in the business which the latter may be carrying on. Smt. Sheila Rani has in her statement in Court sworn that her husband is employed in the Railway Department and in his spare time he also works with his father. It has been added that he had also ornaments with him. In my opinion, it is not possible to say that the learned Sub-Divisional Magistrate has arrived at the estimate of the husband s income aibitrarily without any material on the record. In view of what has just been stated, the decision of the Allahabad High Court in Ram Sinph v. State, cited by Shri Duggal on behalf of the husband is of no avail to him.

( 7 ) BUT this apart, as submitted by Shri Bhandari, an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say