A wife is entitled to maintenance from her husband under Section 488 Cr.P.C. (old) if she is unable to maintain herself and the children, and the husband has sufficient means to maintain them.

1. - This revision petition arises out of proceedings Under Section 488 Cr.PC (old), Smt. Sujan Kaur is the wife of Awtar Singh non-petitioner No. 2 and petitioners No. 2 & 3 Jeet Singh and Gurmeet Singh are the two minor sons, born out of the wedlock of Sujan Kaur with Awtarsingh. Smt. Sujan Kaur filed an application under Section 488 Cr.PC (old) for the grant of maintenance for herself and her two minor children against Awtar Singh. In the application, a case was set up that about five years prior to the filing of the application, which was filed on May 24, 1973 her husband Awtarsingh gave beating to her and she and her two minor children were turned out of the house. Since then she was living with her parents and inspite of efforts Awtarsingh did not take her and the minor children. It was further mentioned in the petition that Awtarsingh was living jointly with his father and both were jointly cultivating 45 bighas of land and the annual income is Rs. 20,000/-. The application was contested by Awtar Singh. It was not disputed that Sujan Kaur is his wife or Jeet Singh and Gurmeet Singh are his sons. According to Awtar Singh, he never maltreated Sujan Kaur, nor she was turned out of the house by him. She went off on her own accord along with the children and started living with her parents. Awtar Singh also offered to maintain Sujan Kaur and the two children provided they returned to him. It was further stated in the reply that he had no land of his own and he was earning his livelihood by labour, and it is difficult for him to earn Rs. 1000/- a year. The learned Magistrate under his order dated June 15, 1976 allowed the application and directed Awtarsingh to pay Rs. 45/- per month as maintenance to Sujan Kaur, Rs. 15/- per month to Jeet singh and Rs. 10/- per month to Gurmeet singh. It was further made clear that the minor will be entitled to maintenance till such time they attain majority. The maintenance amount was allowed from the date of that application, that is June 11, 1973.

2. Awtar Singh filed a revision petition before the learned Sessions Judge, Sri Ganganagar and other revision petition was filed by Sujankaur for enhancing of the amount of maintenance. Both the revisions came up for hearing before the learned District judge, who under his order dated January 18,1977 allowed the revision of Awtarsingh, set aside the order of the learned Magistrate and dismissed the revision of Sujankaur. Sujankaur aggrieved against the order of the learned District Judge allowing the revision petition of Awtarsingh has preferred this revision petition.

3. The learned Magistrate held that Sujan Kaur was beaten and was turned out of the house. He, therefore, did not take in to consideration the offer of Awtarsingh to maintain Smt. Sujankaur only if she returns to him as in his opinion the offer was not bonalide. The learned District judge has not set aside the above finding of the learned Magistrate. He only considered the case that Sujankaur has failed to prove that she was turned out of the house because Awtarsingh wanted to bring another wife. Without setting aside the finding of the Magistrate on the point of maltreatment of Sujan Kaur by her husband Awtar Singh, the learned Session Judge could not have reversed the order of the Magistrate. The other ground on which the learned District Judge has set aside the order of the learned Magistrate is that Sujan Kaur has failed to prove that she was unable to maintain herself or the minor children were unable to maintain themselves. No doubt under Section 488 of the Cr.P.C (old, only such wife or legitimate or illegitimate child who is unable to maintain itself and who is neglected or refused to be maintained by the husband or the father as the case may be, having sufficient means, is entitled to maintenance. I had occasion to deal with the provisions of Section 125 Cr.P.C. (New) in Banshilal v. Mangibai, S.B. Criminal Misc. petition No. 190/80 and Shanker v. Nosarbai, S.C.