Impotency of the husband is not a ground for granting maintenance to the wife under Section 488, Cr. P. C. (old) or Section 125, Cr. P. C. (new).

( 1 ) AN application was filed by Shrimati Mahrul Nisa under Section 488, Cr. P. C. claiming maintenance from her husband Bundoo. Her contention was that she lives with her husband at her house for about 11/2 years and during this period she discovered that he was impotent. It was a great mental shock to her, Bundoo assured her that he will get himself medically treated but to no effect, He subsequently began to bring his friends and wanted that she should have her sexual desire satisfied from them. Such a proposal was intolerable to the applicant, as such, she was subjected to beating by Bundoo in the presence of his friends. He thereafter began to ill-treat her and did not give her adequate food and clothing and ultimately turned her out of the house. The applicant was living with her parents. Her husband had neglected and failed to maintain her. On these allegations a maintenance allowance of Rs. 100 per month was claimed.

( 2 ) BUNDOO admitted that he was married to Shrimati Mahrul Nisa and that the latter lived with him for about 2 1/2 years. According to his case he was physically fit and did not suffer from impotency. She had gone to her father (and he) did not send her back. He wants to sell her and tried to compel to divorce her. Bundoo denied his liability to pay maintenance to his wife.

( 3 ) THE Magistrate on a consideration of the evidence on record came to the conclusion that Shrimati Mahrul Nisa failed to prove the case of impotency of her husband alleged by her. On this ground solely he dismissed her application for maintenance. Aggrieved there-by a revision was filed before the Sessions Judge, Saharanpur which has been allowed, Bundoo has been directed to pay a sum of Rs. 35 per month! as maintenance allowance to his wife. Hence this revision, I have heard counsel for the parties at great length and have also perused the impugned order.

( 4 ) THE Sessions Judge re-examined the entire evidence on the record and reversed the findings of fact recorded by the trial court holding that Bundoo was impotent and incapable of satisfying the sexual needs of his wife. In his view impotency of the husband amounted to legal cruelty which must result in great mental shock and agony to the wife and therefore she was entitled to live separately from her husband and claim maintenance.

( 5 ) BEFORE dealing with the question of law involved in this case, it must be observed that the Sessions Judge was not justified in reassessing the evidence on the record and reversing the finding of fact arrived at by the trial Court, as regards the question of impotency of the husband, I find from the perusal of judgment of the Magistrate that he has taken into consideration the entire evidence on the record led in connection with this question and he was of the opinion that Shrimati Mahrul Nisa failed to prove by convincing evidence that Bundoo was impotent. A court of revision is not entitled to reassess and reappraise the evidence on the record, unless he finds that the judgment sought to be revised suffers from any illegality or perversity. In my view, therefore, the Sessions Judge has acted illegally in the exercise of his jurisdiction in reversing the finding of fact arrived at by the trial court.

( 6 ) COMING now to the legal question involved in this case, the point for consideration is : Whether the impotency of the husband is a valid ground for granting maintenance to the wife in proceedings under Section 488 Cr. P. C. (now Section 125 Cr. P. C. ). Section 488 (1) Cr. P. C. (old) ran as follows:

If any person having sufficient means neglects or refuses to maintain his wife. . . . the District Magistrate. . . . may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. . . . at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit. . . Even under the new Code of Criminal Procedure, after its amendments by Act 2 of