1984 Supreme(MP) 177

R. K. Vijaywargiya, J.
Vimlabai v. Manoharlal Rishi
Cr. R. No. 439 of 1981 (I); Decided on 7-3-1984.

Headnote:(1) Criminal P. C., 1873 -- S. 397 -- revision before Sessions Judge -- finding of facts recorded by trial Court -- should not he interfered with in absence of illegality or impropriety.

        (2) Criminal P. C., 1973 -- S. 125 -- maintenance under -- husband producing document regarding divorce and non-claiming of maintenance -- document falsified by other evidence -- wife is entitled to claim maintenance.

        (3) Criminal P. C., 1973 -- S. 125 -- amount of maintenance -- husband earning more than Rs. 500/- p. m. -- maintenance of Rs. 200/- to wife is justified.

        The applicant is the wife of non-applicant. The applicant submitted an application under Section 125 of the Code of Criminal Procedure claiming maintenance from the non-applicant on the ground that she was turned out by the non-applicant who refused and neglected to maintain her. The application was opposed by the non-applicant. The trial Magistrate held that the non-applicant refused and neglected to maintain the applicant and ordered the non-applicant to pay a sum of Rs. 200/- per month as maintenance from the date of the application. The non-applicant submitted a revision petition against the order passed by the trial Magistrate. The revisional Court allowed the revision and set-aside the order passed by the trial Magistrate and dismissed the application submitted by the applicant. Aggrieved by the order passed by the revisional Court the wife has submitted this revision.

        Held : In my opinion, the revisional Court was not justified in interfering with the order passed by the trial Magistrate. Having held that the trial magistrate for weighty reasons had come to the conclusion that the document Ex. D-1 was not executed by the applicant the revisional Court has committed an error that the said document cannot be ignored unless it is set-aside by a competent-court. The revisional Court further erred in holding that the award of the maintenance allowance would hamper the process of reconciliation between the parties. There was no question of reconciliation when the non-applicant falsely alleged that the marriage between the parties was dissolved by agreement and they were Li"Ving apart by mutual consent. Moreover the learned counsel for the non-applicant did not dispute the fact that the husband has filed a petition for dissolution of the marriage between the parties which is pending in the trial Court.

        In my opinion trial Magistrate was fully justified in holding that Ex. D-1 was not executed by the applicant and that she signed a blank paper as alleged by her. The document Ex. D-1 is said to have been executed on 18-7-1977. However, on 19-8-1977 the non-applicant wrote a letter Ex. P-4 to the applicants brother. The tenor of this letter belies the allegation of the non-applicant that the marriage between the parties was dissolved on 18-7-1977. In my opinion, the finding recorded by the trial Magistrate on appreciation of the evidence on record was reasonable and in the absence of any illegality or impropriety having been, committed by the trial Court in recording the said finding the revisional Court was not justified in interfering with the same.

        The learned counsel for the non-applicant also contended that the application of the applicant should have been dismissed on the ground that she did not allege and prove that she was unable to maintain herself. The contention is not well founded. In the application the applicant specifically stated that she has no income and in her statement also she made that averment. It is not pointed out by the non-applicant that the applicant is possessed of any source of income. In the circumstance the trial Magistrate did not commit any error in holding that the applicant was unable to maintain herself. The decision in Bilquis Bai w/o Sher khan v. Sher Khan Elahibux; (1983 MPLJ 873) relied upon by the learned counsel for the non-applicant is distinguishable on facts.

        The learned counsel for the non-applicant also contended that the amount of maintenance awarded by the trial Magistrate is excessive and deserves to be suitably reduced. This contention has also no merit. The trial Court has awarded the maintenance on the basis that the income of the non-applicant is 500/-per month. However, the non-applicant has admitted that he files income tax returns in respect of his concern Laxmi Battery House which means that the income of the non-applicant is more than Rs. 500/- per month. In my opinion, it cannot be held that the amount of maintenance awarded by the trial Magistrate is excessive in the circumstances of the case. 1983 MPLJ 873 distinguished. Revision allowed.