The lack of requirement for permanent residence for filing a maintenance application and the presumption of marriage when co-habitation is established.

( 1 ) THIS criminal revision has been filed by Smt. Kasturi Devi, wife of Prahlad Singh, and ghanshyam Das (minor), son of Prahlad Singh, against the judgement dated 1. 12. 1988 passed by the Additional Sessions Judge/ Special Judge (Essential Commodities Act ), Lalitpur whereby the learned Sessions Judge had allowed the criminal revision No, 46 of 1988 and set aside the order dated 30. 7. 1988 passed by the learned Munsif Magistrate, Lalitpur in case No. 88 of 1985, under Section 125 of the Code of Criminal Procedure awarding maintenance to Smt. Kasturi devi, wife at the rate of Rs. 150/- per month and Rs. 75/- per month to Ghanshyam Das, child from the date of application.

( 2 ) HEARD Shri A. N. Tripathi, learned Counsel for the revisionists, Shri Pankaj Saxena, learned counsel for opposite party No. 1 and learned Additional Government Advocate representing the state.

( 3 ) THE grounds taken by the learned Sessions Judge for allowing the said revision were firstly; that the Court at Lalitpur where the application for maintenance was filed, had n6 jurisdiction to decide the matter and secondly; that there was no adequate proof of the marriage of Smt. Kasturi devi with Prahlad Singh and in any case no maintenance ought to have been granted.

( 4 ) SO far as the first ground is concerned, it may be noted that under Section 126 (1) of the Code of Criminal Procedure, proceedings under Section 125 Cr. P. C. may be taken against any person in any district where he is, or where he or his wife resides or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. In this view of the matter, the application for maintenance could have been filed in a place where the wife resides.

( 5 ) IT may be noted that there is no requirement of permanent residence at a place by the wife where the application has been filed. In the judgement of the Magistrate, it was mentioned that d. W. 1 Prahlad Singh had stated that he could not say where opposite parties were residing, but he accepted that Kasturi Devis brother used to ply Rickshaw in Lalitpur. In the plaint it was clearly stated by the revisionists that they were residing in Lalitpur. Learned Sessions Judge, however, mentioned that in her examination-in-chief revisionists have not clearly mentioned that they were residing in Lalitpur, but she had stated in her evidence that she belonged to mauranipur. Learned Sessions Judge had drawn an inference that Smt. Kasturi Devis husband prahlad Singh and revisionists along with Prahlad Singh had never resided in Lalitpur from-the date of her application. In his cross examination P. W. 2 Shyam Sundar, Jija of Smt. Kasturi Devi had stated that Smt. Kasturi Devi was residing with her mother in Lalitpur, but this was only for 6 or 7 months prior to his examination. It may be noted that proceedings under Section 125 cr. P. C. are not meant to curtail the rights of an abandoned wife, who is claiming maintenance an hyper technical (SIC) of the evidence. There was little reason for Smt. Kasturi Devi to have initiated proceedings under Section 125 Cr. P. C. in Lalitpur if she was not residing in Lalitpur on the day when she moved the application for maintenance and as she has clearly mentioned in her plaint, which was not adequately refuted by Prahlad Singh that she was residing in Lalitpur with her brother, I think the findings of the Magistrate, who awarded maintenance are to be preferred to the conclusion arrived at by the Sessions Judge.

( 6 ) SO far as the second contention, which found favour of the Revisional Court that there was inadequate proof of the marriage of Smt Kasturi Devi with Prahlad Singh, which was based on the assumption that evidence of the essential rites and ceremonies of the marriage was absent in this case and adequate proof of the same should be given. In this connection even if Smt. Kasturi devi who was a poor and illiterate woman may not have mentioned all the details, such as