A WIFE IS ENTITLED TO MAINTENANCE FROM HER HUSBAND UNDER SECTION 125 OF THE CRIMINAL PROCEDURE CODE IF SHE IS TORTURED BY HIM AND HIS FAMILY AND IS FORCED TO LEAVE THE MATRIMONIAL HOME.

JUDGMENT :

M.B. Shah, J.

The petitioner-wife had filed Criminal Miscellaneous Application No. 160/82 in the Court of the Metropolitan Magistrate, Court No. 10. Ahmedabad, under Section 125 of the Criminal Procedure Code for her maintenance.

It was alleged by the petitioner that on 11-5-1981 the petitioner and opponent No. 1 married and stayed together as husband and wife for some time. It is her say that at the instigation of opponent No. 1 husband's mother and sister, the husband started ill-treating Vie petitioner, that physically and mentally she was tortured and false allegations were made against her ; she was abused and informed that she was brought as a house maid for cleansing utensils ; that she was threatened by opponent No. 1 that she would be driven away ; that on 25-2-1982 she was severely beaten and driven away from the house. It is her say that opponent No. 1 was doing business by running a grocery shop in the name of Malaviya & Co. and that his income was Rs. 4,000/- per month. It is further stated that opponent No. 1 was having 18 bighas of land in village Amrutpura, Taluka Dhari, District Amreli, from which he was having income of Rs. 10,000/- per year. She had, therefore, prayed for maintenance of Rs. 500/- p. m.

2. After recording the necessary evidence, the learned Metropolitan Magistrate, Court No. 10, by his judgment and order dated 23rd May, 1983 rejected the application on the ground that the petitioner had failed to prove that she was mentally or physically tortured by the opponent No. 1. The learned Magistrate took into consideration that at the time of trial, the petitioner's father was not prepared to send her at her husband's house.

Being aggrieved and dissatisfied by the said judgment and order the petitioner has filed this revision application. Along with this revision the petitioner has filed an affidavit stating that after the learned Magistrate has passed an order rejecting her application, opponent No. 1 had married for the third time one Kashiben D/o. Premjibhai Vallahhai Board of village Kupra, District Amreli Kashiben and opponent No. 1 are residing together as husband and wife and Kashiben was carrying and 'Simant' ceremony was performed as per the custom of the caste. Whatever the facts may be, at this stage in this revision application it would not be possible for me to take into consideration the aforesaid affidavit filed by the petitioner.

3. On merits of the case as they stand, the learned advocate for the petitioner vehemently submitted that the learned Metropolitan Magistrate has not at all appreciated the evidence produced on behalf of the petitioner. It is true that the learned Magistrate has not at all considered or appreciated the evidence of the witnesses examined on behalf of the petitioner. He has straightaway drawn an inference from some talk which might have taken place before him with regard to the compromise and one letter Ex. 18. In my opinion, before deciding the matter it was the bounden duty of the learned Magistrate to decide it after appreciating the evidence on record.

4. The petitioner is examined as witness No. 1. She has stated that she was treated by her husband as a maid-servant and on 25-2-82 she was severely beaten. Her mother-in-law and sister-in-law thereafter left her at her parent's house in rickshaw. They informed her parents that they did not want to keep the petitioner at their house. With regard to the income, it is her say that the opponent No. 1 was doing business and that his income was Rs. 4,000/- per month. In the cross-examination it is her say that she was not prepared to go to at her husband's house on any condition because she feared that she would be murdered. In the evidence of the petitioner's father he had stated that he and one Vallabh Kurji went to the house of the opponent No. 1 and requested that the petitioner may be kept with them. The opponent informed him that they did not want the petitioner. He had denied the suggestion that the pet