JUDGMENT 1. - This is an application under section 482, Cr. P. C. filed by Mohan Lal for setting aside the order of the Sessions Judge, Balotra, dated October 22, 1977, in Criminal Revision No. 4 of 1977, confirming the order of the Munsif Magistrate, Barmer, dated December 15, 1976, granting maintenance to Smt. Pushpa at the rate of Rs. 250/- p. m. from the date of her application i. e., September 30, 1974. 2. The relevant facts giving rise to this application may be briefly stated as follows:- Smt. Pushpa is the legally married wife of the petitioner. Her marriage with the petitioner took place on Asada Sudi 7 Samvant year 2023 in accordance with the Hindu rites. After her marriage, she lived with her husband in the latters house at Phalsund for some time. Thereafter the petitioner married another woman and began to treat his first wife Mst. Pushpa in a cruel manner. The petitioner then took Mst. Pushpa, non-petitioner, to her parents house at Barmer on some pretext and left her there without making any provision for her maintenance. Smt. Pushpa lived with her parents for some time but, later on, she preferred to live separately in a rented house. As the petitioner neglected to maintain her and as she was having no means for her livelihood, she applied for maintenance to the court of the Munsif and Judicial Magistrate, Barmer under section 125 Cr. P. C. The learned Magistrate issued notice to the petitioner and enquired into the application for maintenance. The petitioner appeared before the Magistrate and contended that he had deposited Rs. 7,000/- with Jai Narayan for maintenance of Smt. Pushpa and so the application for maintenance was liable to be dismissed. The petitioner further urged that his marriage with Smt. Pushpa was not performed in accordance with Hindu Rites. He, however, admitted that Smt. Pushpa lived with him at his house. 3. The learned Magistrate recorded the evidence of the parties and after hearing arguments came to the conclusion that Smt. Pushpa was the lawfully wedded wife of the petitioner and that the petitioner neglected to maintain her and contracted second marriage with another woman during Smt. Pushpas life-time. He, accordingly, awarded maintenance to Smt. Pusha at the rate of Rs. 250/- since the date of her application. He, accordingly, awarded maintenance to Smt. Pusha at the rate of Rs. 250/- since the date of her application. Aggrieved by the order of maintenance, the petitioner filed a revision petition in the court of the Sessions Judge, Balotra, but the revision-petition was dismissed and the order of maintenance passed by the learned Munsif and Judicial Magistrate, Barmer was upheld. Hence, Mohan Lal, petitioner, has moved this court in exercise of its inherent jurisdiction for setting aside the orders of the courts below. 4. Notice of this application under section 482, Cr. P. C. was given to Smt. Pushpa but she did not care to appear in this court despite due service of the notice upon her. As nobody appeared on her behalf, I heard Mr. A. L. Chopra, learned counsel for the petitioner, and perused the record. The only contention raised before me by the learned counsel for the petitioner is about the quantum of maintenance. According to Mr. A. L. Chopra, the learned Judicial Magistrate committed an error in fixing a luxurious amount without taking into consideration the income of the husband and its sources. It was further urged that there is no reliable evidence of the record to show that the petitioner is in a financial position to pay a sum of Rs. 250/-per month as maintenance of his wife. 5. I have considered the above contention. At the outset I may observe that in determining the amount of maintenance, it is necessary to find out the means and the earning capacity of the husband and then to consider the necessities of life according to the status in life of the wife. In the instant case Smt. Pushpa stated in his deposition that her husband is a moneyed man running shops of cloth and general Merchandise at Phalsund. She did not give any estimate of her Husband's monthly or yearly income. Her witness Chandan Mal P. W. 2 also did not say anything about the means of income of Smt. Pushpa's husband i. e. the petitioner. Ram Jas, P. W. 3, no doubt stated in his examination-in-chief that Pushpa's husband Mohan Lal's financial position is good and he derives an income of Rs. 30,000/- or Rs. 35,000/-, per year from his shops running at Jodhpur and Phalsund. Ram Jas, P. W. 3, no doubt stated in his examination-in-chief that Pushpa's husband Mohan Lal's financial position is good and he derives an income of Rs. 30,000/- or Rs. 35,000/-, per year from his shops running at Jodhpur and Phalsund. When cross-examined, on this point, Ramjas could not say whether the shop at Jodhpur and the house of Phalsund belonged to Pushpa's husband Mohan Lal or to his father. He, however, stated that these properties belonged to Mohan Lal, his father and brothers. Mohan Lal petitioners witness Inder Singh, D. W. 1, Mishrilal, D. W. 2 and Durga Lal D. W. 3 on the other hand, stated that Mohan Lal is not an earning member in the family and that shops and other properties belonged to the joint family consisting of the petitioner, mother, his father, mother and three brothers. On the basis of this evidence, the learned Magistrate held that the petitioner has sufficient means to provide maintenance to his wife. In my opinion, the learned Magistrate wrongly held, upon this evidence that the petitioner is in a financial position to pay maintenance to his wife at the rate of Rs. 250/- per month. It is no doubt established from the record that the petitioner is a member of the joint family consisting of his father and three brothers and the joint family is running shops and is having some properties at Phalsund, but, in the absence of any clear and cogent evidence about monthly or yearly income of the family, it cannot be safely held that the petitioner has sufficient means to provide maintenance for his wife at the rate of Rs. 250/- per month. The learned Magistrate took into consideration only the needs of the wife. He must also have considered the paying capacity of the husband, status of his family and its earnings in determining the amount of maintenance. Consequently, I am of the view that the learned Magistrate fixed an arbitrary amount of maintenance on more conjectures without taking into consideration the means and the paying capacity of the husband. Smt. Pushpa is a woman of middle class family. Her father is a shop-keeper at Barmer and she is married to the petitioner who also comes out of middle class family. In these circumstances, the ends of justice would be met, if the amount of maintenance is fixed at Rs. 100/- per month. 6. Smt. Pushpa is a woman of middle class family. Her father is a shop-keeper at Barmer and she is married to the petitioner who also comes out of middle class family. In these circumstances, the ends of justice would be met, if the amount of maintenance is fixed at Rs. 100/- per month. 6. The application under section 482 Cr. P. C. is therefore, allowed and the amount of maintenance awarded to Smt. Pushpa by the Munsif and Judicial Magistrate, Barmer is reduced from Rs.250/- per month to Rs. 100/- per month since the date of her application i.e. Sept. 30, 1974. The lower courts may be informed accordingly.Appeal allowed. *******