A wife is entitled to maintenance from her husband if she has been subjected to cruelty by him, which justifies her refusal to live with him.

( 1 ) BOTH these cases are being disposed of by this order as these arise out of the same order of Sri S. C. Mittal, learned Sessions Judge Jhansi dated 3-8-1983 who dismissed Criminal Revision No. 35 of 1983 preferred by Sumer Singh and allowed Criminal Revision No. 41 of 1983 preferred by Smt. Kalpna, wife of Sumer Singh.

( 2 ) BOTH these cases arose under following circumstances : application under Section 125 of Code of Criminal Procedure for maintenance was moved by smt. Kalpna on 5-8-1981. The Allegations were that she was the second wife of Sumer Singh married at Jhansi in 1979 according to Hindu rites. The first wife of Sumer Singh expired in a fire incident.

( 3 ) AFTER her marriage with Sumer Singh, she performed her marital obligations and was pregnant. On 3-5-1981 she returned to her house with her brother as her father, who was a railway servant, was going to retire. Her elder sister Smt. Malti was murdered on 28-5-1981 and the entire family was grief stricken. It was on 6-6-1981 that her husband. Sumer Singh came to jhansi to fetch her. She told Sumer Singh that on account of the murder of her sister it was not possible for her to accompany him. The whole family was stricken with grief and it was not an opportune time for her to accompany him. However, Sumer Singh was adamant and dragged her by catching her hair and belaboured her. It was on the intervention of her family members that her life could be saved. Her husband went away giving threats that his doors were closed for her forever. This incident of violence made her apprehensive that her life could be imperilled if she ever went to the house of Sumer Singh. It was further averred that she had no means of income and was unable to maintain herself and her husband was earning Rs. 500/- per month and could easily pay Rs. 200/- per month for the maintenance.

( 4 ) SUMER Singh denied these allegations and alleged that he never ill-treated his wife. He always gave her due respect. Smt. Kalpna herself refused to live with him and thus was not entitled to maintenance. All his attempts to fetch his wife were in vain. He was still willing to keen her.

( 5 ) AS a male child was born on 17-8-1981 so wife moved another application on 22-4-1982 before the Magistrate concerned seeking maintenance from the husband for the child at the rate of Rs. 70/- per month.

( 6 ) THE husband contested that application also on the ground that as the wife had no just and sufficient ground to live separately so neither she nor the son was entitled to any maintenance. Before the trial Magistrate, Smt. Kalpna examined herself as P. W. 1 Vishwanath as P. W. 2 and vikram Singh as P. W. 3.

( 7 ) SUMER Singh examined herself as P. W. 1. Har Bhajan as D. W. 2 and Kunj Behari Agarwal as p. W. 3.

( 8 ) TRIAL Magistrate on a consideration of evidence on record, allowed the claim of the son for maintenance at the rate of Rs. 70/- per month. However, the trial Magistrate refused maintenance to the wife on the ground that there was no sufficient cause on her part to live separate from the husband.

( 9 ) BOTH the parties preferred revisions against that order. The revision of husband was dismissed and that of the wife was allowed by the impugned order as given above awarding the amount of rs. 130/- per month as maintenance.

( 10 ) THE husband has filed the revision in the Court against the award of maintenance to the wife and has also filed an application under Section 482 of Code of Criminal Procedure about the award of maintenance to the son.

( 11 ) I have heard Sri Satya Narain Misra, learned Advocate for revisionist Sumer Singh and Sri s. D. Dubey on behalf of opposite party No. 1 Smt. Kalpna and A. G. A. on behalf of State.

( 12 ) LEARNED Advocate for husband has taken me through the entire evidence. His contention was that it was not open to the revisional court to have disturbed the finding of learned trial magistrate on the question of fact. Learned Magistrate had assessed the