The right to be maintained by the husband stems from performance of marital duty. If the wife declines to live with the husband without just cause and there is no evidence of ill-treatment by the husband, she is not entitled to maintenance.

( 1 ) ORDER :- This revision by the husband has been preferred against the revisional order D/- 17-3-97 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner whereby he set aside the order D/- 22-4-95 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondents Nos. 1 to 3.

( 2 ) THE short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under S. 125, Cr. P. C. against her husband-Bheeka Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheeka Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated that Bheekha Ram earned Rs. 60/- per day by doing Mason work. It was prayed that she be allowed maintenance @ Rs. 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.

( 3 ) GOMA Devi entered into the witness box and examined A. W. 1 Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined N. A. W. 2 Kaluram, N. A. W. 3 Modaram and N. A. W. 4 Sampatram. After hearing the counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegations of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against that order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.

( 4 ) MR. S. D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bano v. Sher Mohammad, 1990 RCC 57, Bhanwari Bai v. Mohd. Ishaq, 1984 MLR 234, Budharam Kosta v. Pitarbai, 1984 MLR 62 and Raghbir Singh v. Krishna, 1982 MLR 307.

( 5 ) ON the other hand, Mr. G. K. Vyas urged that this Court should not interfere in the revisional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.

( 6 ) I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reappreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a revisional Court is not as that of appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entere