N.N. Sharma, J.
1. This revision is directed against order dated 16-3-1984 recorded by Sri Awadh Behari Shukla, XI Addl. Sessions Judge, Agra who allowed Criminal Revision No. 615 of 1983 and set aside the judgment of IInd Addl. Chief Judicial Magistrate, Agra dated 25-10-1983 in Case No. 40 of 1983, under Section 125, Cr. P.C. by which the petition of opposite party for recovery of maintenance was dismissed.
2. Briefly stated prosecution case was that about three years, prior to 21-1-1983 when the petition for recovery of maintenance was filed in the Court of Magistrate concerned, parties were married in accordance with Hindu rites in Naya Nagla Kotali Bagichi, Police station Tajganj, Agra. Dowry worth Rs. 7,500/- was also given in that marriage by father of the respondent. However, revisionist and his family members were dissatisfied with that amount of dowry and mal-treated the respondent and rendered her life miserable during her stay in revisionist's house. They continuously pestered her with demands, of more dowry, she was sent to her house along with her father expressing their dissatisfaction in the matter of dowry.
3. Father of respondent convened a Panchayat persuading the revisionist to keep the respondent at his house with dignity. However, revisionist and his family members did not improve their behaviour and insulted her father also and there was no other option for the respondent except to go to the house of her father where she was residing for five months prior to the filing of the petition. The respondent was illiterate and could not secure any employment and her father was not in good financial condition to maintain her.
4. The revisionist was a doctor and a man of status earning about Rs. 2,000/- per month and so could easily afford the sum of Rs. 250/- per month as maintenance to the respondent as claimed by her.
5. The claim was resisted on the ground that the revisionist was unemployed, he or his family members never harassed the respondent, the lady herself left the house of revisionist with ornaments and clothes worth Rs. 12,000/- and went to the house of her father when revisionist went to fetch her, her father misbehaved with him and threatened him with dire consequences. The lady shirked work and her behaviour was not upright; the revisionist was prepared to keep her along with him if she brought back the ornaments and clothes worth Rs. 12,000/- taken by her earlier at the time of her return; she had to be have properly with family members of revisionist and should dispel doubts about her character.
6. Learned trial Magistrate found that as the lady was willingly living with her father without any justifiable cause so she was not entitled to claim maintenance.
7. Learned revisional court re assessed the oral and documentary evidence adduced by parties and opined that the learned Magistrate did not appraise the evidence in proper perspective. Letters Exts. Ka. 1 to 4 filed by the opposite party and the reply of notice sent by the revisionist indicated that husband attributed immorality to the wife which allegation could not be substantiated by the husband.
8. These documents supported the oral statement of the respondent herself, Ghasita and Narain Singh. The cruelty was to the extent that kerosene oil was sprinkled on the lady with a design to burn her alive.
9. Revisionist and one Hub Lal were examined in rebuttal. They denied these allegations. So learned Judge found from the evidence on record that the respondent was entitled to maintenance at the rate of Rs. 150/- per month from the date of filing the petition.
10. Aggrieved by this decision this revision has been preferred.
11. I have heard learned Counsel for the parties and perused the record.
12. The first contention put forward in revision on behalf of the revisionist was that in her petition as well as her own statement it was never alleged by the lady that she was unable to maintain herself. Unless such averment was made in the petition, no maintenance was awardable under Section 125, Cr. P.C. as was held in Bishambhar Dass v. Smt. Anguri reported in 1978 Cri LJ 385 (All).
13. Reliance was also placed on Smt. Haunsabai v. Bal Krishna Badigar reported in 1981 Cri LJ 110 (Kant). In that case in her petition for maintenace the wife failed to aver positively that she was unable to maintain herself nor substantiated it by evidence. So this was treated as sufficient ground for rejection of her petition.
14. Man Mohan Singh v. Smt. Mahindra Kaur reported in 1976 Cri LJ 1664 (All) was also cited in support of the aforesaid contention. In that case neither there was any allegation in the application or in the statement recorded by Magistrate that she was unable to maintain herself nor any finding was recorded on this point and so award of maintenance was held illegal. It was pointed out that Section 125(l)(a) of the Cri. P.C. provides for maintenance allowance to a neglected wife who is unable to maintain herself. It was a distinct departure from Section 488, of the Cri. P.C. of 1898 wherein wife was not under the necessity to establish this fact.
15. Learned Counsel for the opposite party relied upon Syed Mukhtar Ahmad v. Smt. Poonisa Fatma reported in 1981 All Cri C 224 (225) : 1981 All LJ 785 which posited:
No doubt if a party had not pleaded a particular case it could not be allowed to lead evidence and further, evidence on such a non-pleaded point cannot be looked into. In my opinion these strict rules of pleading and proof which are applicable to civil matters, should not be extended to cases under Section 125, Cr. P.C. This section contains a beneficial socioeconomic provision for the assistance of unprovided for and discarded wives and children and, therefore, this provision is to be construed liberally so far as the question of , taking up a plea in the application is. concerned. If no plea is taken up in the application and no evidence is led to prove that the wife is unable to maintain herself, her claim for maintenance may be negatived but where the parties have joined issue on this important point at the time of enquiry and have led evidence, then the technical contention that the plea was not taken up in the application, should not be allowed to prevail. Clause (a) of Sub-section (1) of Section 125, Cr. P.C. clearly says that a wife who is unable to maintain herself can claim maintenance, allowance from her husband if some other conditions are also fulfilled. It does not specifically lay down that this plea must be raised by the wife in the application. A party is not to be taken by surprise and it is for this reason, that it is necessary and desirable that the plea sought to be relied upon is set out in the application. However, in a case where the plea was not mentioned in the application but was raised at the time of enquiry and the parties joined issue on it and led evidence, it cannot be said that the other party (here the husband) was taken by surprise or was prejudiced in his defence.
16. It appears that this ground was not raised in the memo of revision on behalf of the revisionist. It is not a case in which such allegation was not made at all in the petition. In para No. 5 of the petition it was laid 'the petitioner is semi literate lady and is unable to secure employment, financial condition of her father is not such as to maintain her for a long period. A similar statement was made by the lady. At page 7 of judgment learned trial Magistrate observed after assessment of evidence of parties that the petitioner was unable to maintain herself. The finding was accepted by revisional Court also. It is a finding of fact on this point and under such circumstances the mere technicality that the plea was not specifically raised in the petition in so many words does not justify any ground to disentitle the respondent from grant of maintenance.
17. The next contention was that learned trial Magistrate found that the lady was voluntarily living with her father. The offer of the husband to maintain her if she lived with him was not carefully appreciated. In Jagarnath Yadav v. Smt. Panwa, reported in 1983 All Cri C 14 : 1983 All LJ 111 when offer made by husband to take wife to his place and keep her and maintain her was not considered by the courts below the case was remanded by this Court. This contention also is not weighty. It has been found by the Court below that the husband indulged in cruelty and attributed immorality to his wife not only in his written statement but also in his letters Exts. Ka. 1 to 4 and his condition to live with his wife was subject to the return of wife along with ornaments and clothes worth Rs. 12,000/- which she never carried from the house of her husband as was found by the courts below. When chastity of the lady had been doubted it 'was not possible for her to live in peace with her husband and such imputations could justify her right to live separately and claim maintenance from her husband as was held in Narendra Prakash Tyagi v. Smt. Kamlesh Kumari Tyagi, reported in 1977 All Cri C 304 in which reliance was placed upon Kandaswami Moopan v. Angammal reported in : AIR1960Mad348 .
18. I respectfully agree with the same view.
19. The next contention was that the husband was unemployed and had no means to maintain wife. In this connection it is significant to note that .the lady in her statement has given income of her husband as Rs. 2,000/- per month. She claimed maintenance at the rate of Rs. 250/- per month. Both the courts below found after taking into consideration all the relevant factors that the lady was entitled to maintenance at the rate of Rs. 150/- per month,
20. I have carefully considered the means of the husband as well as the needs of the lady and the standard of living which is modestly consistent with the status of the family.
21. Having regard to the requirements of wife and the earning of the husband a sum of Rs. 150/- per month in these hard days cannot be regarded to be excessive when husband admitted his ability to spend Rs. 150/- per month as maintenance of wife.
22. In the result revision is dismissed. Interim stay order dated 23-7-1984 is vacated herewith.