JUDGMENT

R.N. Sharma, J. - The learned Civil and Sessions Judge, Pratapgarh, has made this reference with the recommendation for setting aside the order dated 27-10-1964 passed by Sri J. N. Dwivedi, Sub-Divisional Magistrate, Patti, directing Ramraj to pay a total amount of Rs. 35/- per month as a maintenance to his wife, Smt. Amrawati Devi and a minor son of the parties. Smt. Amrawati had filed an application under Sec. 488, Code of Criminal Procedure, alleging that the opposite party had opened a shop of betels and cigarettes at Fatanpur which was at a distance of one mile from the parties village. The husband had developed intimate connection with the widowed aunt of one Jag Narain and he mostly lives there. He has also got a daughter of that woman married to his younger brother. He gives beating to his wife and harasses her. He does not provide the wife and the 3 years old son living with her with maintenance. He has also been threatening to turn them out of the house. The wife belongs to a high caste of Hindu society and cannot work as a labourer. Thus she is in great trouble and is unable to maintain herself and son. The husband possesses considerable property and has an income of Rs. 200/- per month from his shop. He has also some deposits in the bank. Thus she prayed for a maintenance allowance of Rs. 30/- per month for herself and the same amount for the maintenance of her minor son. The husband Ramraj contested the application denying all these allegations of his wife. He alleged that his younger brother, Dwarka entertains malice and grudge against him and wants to take half share in the property and he induced the wife to make this application with wrong allegations. The husband was always willing to keep the wife with him and to maintain her but she was under the baneful influence of his brother and wants to live separately.

2. Both parties produced evidence and on considering the same the Magistrate found the wifes allegations correct and directed the husband to pay a total amount of Rs. 35/- per month as maintenance.

3. Aggrieved by this order the husband, Ramraj went in revision before the Sessions Judge. The learned Sessions Judge came to the conclusion that the wife had not been able to establish the necessary ingredients of Sec. 488 of the Code of Criminal Procedure so as to be entitled to maintenance. In his opinion there was no legal evidence to show that the husband ever refused to maintain or neglected, his wife and son. He was further of the opinion that the Magistrate had passed the order on mere conjectures and surmises and the order of the Magistrate was perverse and illegal.

4. I have heard the learned counsel for the parties and I am not inclined to agree with the learned Sessions Judge. As said above, both parties had examined some witnesses. Two witnesses P. W. 2 Danpal Singh and P. W. 3 Gopal Narain were examined on behalf of the wife, besides herself. These witnesses are residents of the same village where the parties reside. They supported the statement of the wife that the husband neglect her and stays away from the village. Of course, the have no personal knowledge as where the husband resides when h is not in the village and also of the beating of the wife by the husband. The witnesses on behalf of the other side are Ramraj himself, and P. W. Debi Prasad and P. W. 3 Ram Dularey. They state that Ramraj neve beats his wife, that both live in the same house and that no threat was ever given to the wife by the husband.

5. The witnesses were examined be fore the Magistrate and he was in a better position to assess the value of their evidence. It is true that the wife has not been able to produce such evidence as may be legally admissible to prove that the husband lives with another woman or that he has been beating the wife. She is a pardahanashin lady and it was difficult for her to procure witnesses from the places to which her husband belongs or where he stays. But merely for this reason her ca