Judgment: N.N.Sharma 1. HEARD learned counsel for the parties and perused the record. This revision is directed against the order dated 9-11-1981 recorded by Sri S. N. Singh, Special Judicial Magistrate, Varanasi in Case No. 439 of 1978, under Section 125, CrPC by which the revisionist was ordered to pay maintenance to his wife Smt. Lal Mani Devi from 10-7-1978 at the rate of Rs. 100/- per month. The prayer for maintenance for child Om Babu was refused as he is already been maintained by the revisionist. 2. THE proceedings were initiated on a complaint registered on 28-6-1978 in the said court by wife who alleged that, parties were married according to Hindu rites about five years prior to the filing of the petition; the conjugal life lasted smoothly for a few years and son Om Babu was born out of this wed lock; however, the revisionist developed illicit intimacy with another lady Smt. Dhanwati and since then he began to maltreat the respondent and neglected to look after her; eventually about five months prior to occurrence at about 8 p. m. she was beaten by the husband and turned out of the house; bereft of her ornaments and clothes; she was obliged to return to the house of her mother; she demanded a sum of Rs. 200/- per month as maintenance for herself and her son as the income of the husband was not less than Rs. 500/- per month. 200/- per month as maintenance for herself and her son as the income of the husband was not less than Rs. 500/- per month. A written statement was filed by the revisionist by which it was alleged that the aforesaid allegations were wrong and false; she was taken away by her mother in March, 1978 along with her ornaments etc., her mother held out an assurance to send the respondent with revisionist after one month; when revisionist went to fetch his wife, she was not sent with him; on 10-7-1978 when revisionist went again to fetch his wife his brother-in-law and respondent abused him and the child was thrown by the petitioner on the ground; his cycle was also snatched away; the child was picked up by the revisionist and brought to his house; he learnt that the petitioner developed illicit intimacy with some man in the village and so was reluctant to return to the house of her husband; he further denied the other allegations of cruelty put forward in her petition by the wife; he further alleged that his monthly income was Rs. 200/- and the wife herself was earning Rs. 150- or 200/- by preparing garlands of pearls. 3. IN support of their case respondent examined three witnesses viz. himself and Dukhoo, DW 1 and Punpun, DW 2. 4. PETITIONER examined herself and one Mithu PW 1 who claimed to be Sahu of Motilal and testified about to the wife. Learned trial Magistrate believed the allegations of petitioner that she was neglected by her husband who had sufficient means to maintain her; he further found that his allegations about maltreatment and snatching of the cycle were falsified by the copy of the judgment dated 8-6-1981 in Case no. 476 of 1979. Both the witnesses examined by the husband were not cited by him as witnesses about the incident of snatching of cycle or throwing the child by the petitioner. In the result the impugned order was drawn. I have heard the learned Advocates for the parties and perused the record. Learned counsel for the revisionist argued before me that such allowance was payable from the date of order or from the date of application for maintenance under Section 125 (2) of the Code of Criminal Procedure. In the result the impugned order was drawn. I have heard the learned Advocates for the parties and perused the record. Learned counsel for the revisionist argued before me that such allowance was payable from the date of order or from the date of application for maintenance under Section 125 (2) of the Code of Criminal Procedure. The learned Magistrate erred in ordering maintenance from 10-7-1978 in his order dated 9-11-1981 and as such the said order suffers from infirmity. This contention fails for the simple reason that it was wir.hin the competence of the Magistrate to record an order of arrears of maintenance from the date of the application. It has been shown above that the case reached the court on 28-6-78 so no illegality is involved in the impugned order. 5. THE next contention was that the procedure adopted by the learned Magistrate in this case was wrong; he recorded the: statements of the revisionist and his witnesses first and deprived him about opportunity to relent evidence of petitioner. It was simply putting the cart before the horse. 6. IN this connection order dated 4-12-1978 on the ordersheet is clear. It was pointed out that according to plea put forward in written statement it was for Moti Lal himself and the onus lays upon him to prove the illicit intimacy of the wife with another person in the village. No objection was raised before the court below that he has ever been prejudiced by such procedure nor any opportunity was sought to adduce any evidence in rebuttal. Under such circumstances, it cannot be held that the revisionist had been prejudiced in any manner; Section 465, CrPC is clear on the point that the form must not override the substance and such error in procedure, even if any, is curable unless it has resulted in failure of justice. Section 465 (2) CrPC lays down the test about the failure of justice; it has been pointed out that even such objection could and should have been raised at an earlier stage in that proceedings and had not been raised it shall be presumed that there was no failure of justice; since such objection was never raised on behalf of the revisionist in the court below so this irregularity even, if any, is not sufficient to reverse the impugned order. The next contention was that there was no specific averment or evidence on record to show that the wife was unable to maintain herself. In this connection there is a specific finding of the court on the issue about which the evidence was adduced by the parties. It was laid in the petition itself that she after being turned out of the house by her 'husband had to take shelter in the house of her mother and was being maintained there. 7. LEARNED Magistrate after examination of parties recorded specific finding that wife did not engage in any activity of preparation of garlands of pearls and all these allegations were false. That is finding of fact and it is not open to this court to disturb the same. So this contention also has no force. 8. LEARNED Advocate for the revisionist also relied upon Smt. Zubedabi v. Abdul Khader, 1978 CrLJ page 1555. It appears that in that case application for maintenance did not contain averments that she was unable to maintain herself and under such circumstances it was stressed that this fact must be specifically pleaded. The next authority relied upon by him has been reported in Man Mohan Singh v. Mahindra Kaur, 1976 CrLJ page 1664 where it was observed :- "Application by wife for maintenance-No allegation in the application or in statement recorded by Magistrate that she was unable to maintain herself- No finding that she was unable to maintain herself-Award of maintenance is illegal." This case is distinguishable for the simple reason that in the instant case parties joined the issue on the point and specific finding; was recorded on the point after appraisal of evidence that wife had no sufficient means to maintain herself. 9. IN Syed Mukhatar Ahmad v. Smt, Moonis Fatma, 1981 AWC page 517 it was observed : "The strict rules of pleading and proof which are applicable to civil matters, should not be extended to cases under Section 125 CrPC. This section contains a beneficial socio-economic 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. This section contains a beneficial socio-economic 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 CrPC 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 lays 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 times 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." It appears from a perusal of such authorities that a number of cases were examined in this case by learned trial Judge and I respectfully agree with these observations. 10. LEARNED trial Magistrate himself has referred to a decision of the Supreme Court reported in 1981 AWC page 517 which runs as follows :- "... Wife not pleaded in her application for grant of maintenance that she was unable to maintain herself-Parties, however, at the time of enquiry joined issues on it and led evidence-Technical contention that plea was not taken out in the application should not be allowed to prevail." So this contention has also no force. Husband himself conceded these sources of his income although he tried to minimise the same only to Rs. 200/- per month. 11. Husband himself conceded these sources of his income although he tried to minimise the same only to Rs. 200/- per month. 11. THE next contention was that there was nothing on record to show that the husband has sufficient means to maintain his wife. In this connection the wife has given monthly income of the husband as Rs. 500/- and has given the sources of his income as player of flute etc. THE same statement was made by PW 1 who successfully stood the test of cross examination. Under circumst- ances it is obvious that he had ample means to maintain the wife. THE means were sufficient to pay a sum of Rs. 100/- per month to the wife as maintenance which cannot be regarded as excessive by any stretch of imagination in these hard days. 12. IN the result the revision is dismissed as devoid of merit.