Illicit relations with a mistress who does not live with the husband do not constitute a sufficient ground for the wife to claim separate residence and maintenance unless the husband's behavior amounts to cruelty.

P.N. Bakshi, J.

1. An application was filed by Shrimati Maya Devi under Section 488 CrPC claiming maintenance allowance from her husband. Her case was that she was the legally married wife of Ishwar Singh Tyagi that her husband had developed illicit relations with one Shrimati Kashmiri the wife of Rohtash Gusain of his village. When she complained to her husband, he beat her, deprived her of all ornaments and clothes and left her at her father's house. The opposite party had failed to maintain her. He has .100 Big has of land of which the annual income is Rs. 40,000/-. Shrimati Maya Devi claimed maintenance allowance of Rs. 500/- per month.

2. These allegations were denied by the opposite party Ishwar Singh. He denied his illicit connection with Shrimati Kashmiri. He also denied having deprived Shrimati Maya Devi of her ornaments and clothes. His case was that Shrimati Maya Devi had gone to her father's place in order to join the marriage of his younger sister. He went to her house a number of times to call her but she did not come with him. Ishwar Singh admitted that he had only 50 Bighas of land but he denied [his liability to maintain his wife. The Stub Divisional Magistrate, Hapur rejected the claim of Maya Devi. Aggrieved thereby a revision was filed before the Sessions Judge, Meerut, which has been allowed on 24th April, 1976. Hence this revision.

I have heard counsels for the parties and have also perused the impugned order. The applicant's counsel has alleged that the Sessions Judge 'has acted illegally in reversing the findings of fact recorded by the trial court. I have very minutely examined this sub- mission. As I have narrated above, the specific case of Shrimati Maya Devi was that her husband had developed illicit connection with Shrimati Kashmiri which was objected to by her and that on account of this illegal relationship he beat her and left her at her father's place. These allegations were denied by Ishwar Singh. From a close scrutiny of the judgment of the trial court I find that the Sub Divisional Magistrate has failed to record a clear finding whether the husband had developed illicit relations with Shrimati Kashmiri, as a result of which he ill-treated his wife, beat her and turned her out of the house. Since this aspect of the matter has not been touched at all by the Sub Divisional Magistrate and no finding given thereon, it was perfectly open to the Sessions Judge, to consider this aspect on re-assessment of the evidence on record. This was clearly an illegality which was committed by the trial court. The failure of the trial court to give a finding on this crucial question was a clear failure to exercise jurisdiction which had resulted in severe prejudice to the case of Smt. Maya Devi. As such the Sessions Judge was fully justified in re-assessing the evidence on this crucial issue and in recording his finding. This illegal omission by the trial court was, therefore, rightly rectified by the court of revision. He came to the conclusion that on account of the illicit relations between Ishwar Singh and Shrimati Kashmiri, he did not like to keep his legally wedded wife with him and after beating her he left Shrimati Maya Devi at her father's house. He has rejected the defence plea that Shrimati Maya Devi went to the residence of her father out of her own free will or that Ishwar Singh went to fetch her from her father's place. In other words, the Sessions Judge held the allegation of cruelty proved and, therefore, on this ground he was fully justified in allowing the claim of Shrimati Maya Devi for maintenance.

3. Learned counsel for the applicant has also argued that even assuming that Ishwar Singh had developed illicit relations with Shrimati Kashmiri, yet, that would not be a sufficient ground for the wife to live separately. He has referred to the proviso in Section 488 (3) CrPC and also to a similar Explanation in Section 125 (3) CrPC. Under the terms of the proviso "Explanation" "if a husban