( 1 ) JUDGMENT dated 4-10-1997 in Crl. Proceeding No. 321 of 1994 u/s. 125, Cr. P. C. of the Court of Judge, Family Court, Cuttack, wherein monthly maintenance at the rate of Rs. 150/- was allowed in favour of the opposite party, has been impugned by the petitioner in this revision. ( 2 ) OPPOSITE party claiming herself to be the legally married wife of the petitioner since 1975 and alleging ill-treatment, cruelty and desertion since 1991, filed the petition u/s. 125, Cr. P. C. in 1994 claiming for monthly maintenance on the ground that she has no source of income to sustain her livelihood whereas, the petitioner being a weaver as well as a skilled carpenter has got sufficient source of income to maintain her. In his show cause/counter petitioner admitted the relationship, but pleaded inter alia about the customary divorce and also alternately stated that opposite party voluntarily deserted him on mutual consent and therefore, she is not entitled for maintenance. In addition to that petitioner also stated that opposite party works as a weaver and is capable of maintaining herself whereas the petitioner is a dependent on his brother. Accordingly, he prayed to dismiss the petition for maintenance u/s. 125, Cr. P. C. ( 3 ) DURING the course of hearing, opposite party examined herself as P. W. 1 and petitioner examined himself as O. P. No. 4. Each of them examined three witnesses more in support of their respective cases. Petitioner also relied upon the documents vide Exts. A to C. ( 4 ) SINCE the inter se relationship between the parties is an admitted fact, to resolve the dispute learned Judge, Family Court formulated the following three issues viz. (i) whether there was torture, negligence and refusal to maintain by the petitioner (opposite party in the lower Court); (ii) whether Ext. B can be construed as a document in proof of mutual separation; and (iii) If Ext. B stands as a legal bar to frustrate the claim of maintenance advanced by the opposite parties (petitioner in the lower Court ). Upon assessment of the evidence on record, learned Judge, Family Court, decided the issues in favour of the present opposite party on the ground that there is no convicing evidence to accept the contention of the petitioner that there has been a divorce between himself and the petitioner or that Ext. Upon assessment of the evidence on record, learned Judge, Family Court, decided the issues in favour of the present opposite party on the ground that there is no convicing evidence to accept the contention of the petitioner that there has been a divorce between himself and the petitioner or that Ext. B proves separate living on mutual consent and that the document Ext. B prepared by the Caste Panchayat does not disentitle the opposite party to claim for maintenance. Thereafter, learned Judge, Family Court considered the question of grant of maintenance and rejecting the contention of the petitioner that the opposite party is capable of making a living by earning as a weaver at the rate of Rs. 40/- to Rs. 50/- per day recorded the finding from the evidence on record that petitioner has a monthly income of about Rs. 3000/- from the weaver business and as skilled labour i. e. carpenter and accordingly allowed Rs. 150/- towards the monthly maintenance in favour of the opposite party. ( 5 ) LEARNED counsel for the petitioner relying upon the self-same evidence and reiterating the same points advanced argument that parties are living separately of their own and when the opposite party has voluntarily deserted the petitioner, in view of the provision in S. 125 (4), Cr. P. C. she is legally not entitled to claim for maintenance. ( 6 ) SUB-SECTION (4) of Section 125, Cr. P. C. reads as hereunder :-"no wife shall be entitled to receive an allowance from her husband under this section if he is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent. "a plain reading of the aforesaid statutory provision makes it abundantly clear that if a wife lives in adultery or withdraws herself from the society of her husband for no sufficient reason, then such wife is not entitled for monthly maintenance u/s. 125, Cr. P. C. Admittedly, in this case, petitioner does not allege a case of adultery against the opposite party. Petitioner has alleged that opposite party has voluntarily deserted him since 1994 and as detail discussed by the learned Judge, Family Court, this aspect has not been proved by the petitioner. P. C. Admittedly, in this case, petitioner does not allege a case of adultery against the opposite party. Petitioner has alleged that opposite party has voluntarily deserted him since 1994 and as detail discussed by the learned Judge, Family Court, this aspect has not been proved by the petitioner. On the other hand, the evidence on record was found sufficient to prove the allegation made by the opposite party that because of love affairs of the petitioner with another lady, the petitioner ill-treated and drove her out in the year 1991. Aforesaid appreciation of evidence and finding recorded thereof by learned Judge, Family Court is found to be on the basis of sound appreciation of evidence in record. Hence the finding on fact is not liable to be disturbed. When petitioner has not been able to prove a case of voluntary desertion by the opposite party, provision in S. 125 (4), Cr. P. C. is not attracted to the present case. ( 7 ) LEARNED counsel for the petitioner further argued that a wife who is unable to maintain herself can only claim for maintenance in view of the provision of S. 125 (1), Cr. P. C. This legal position is not disputed at the bar. In that context the further argument of the petitioner is that evidence is sufficiently available to record a finding that the opposite party has a daily income of around Rs. 40/- to Rs. 50/-, hence she is not entitled for any maintenance from the petitioner. Learned counsel for the opposite party on the other hand supporting the finding of the lower Court argue that petitioner has miserably failed to prove that opposite party has any income of her own and in that respect no importance can be given to the evidence of P. W. 2 which the petitioner has attempt to use as a piece of admission though it has been properly assessed and not accepted by the learned Judge, Family Court. In view of the above rival contention evidence in record in perused vis-a-vis relevant findings of the lower Court. ( 8 ) IN her evidence opposite party as P. W. 1 has denied of any source of income, much less an income of Rs. In view of the above rival contention evidence in record in perused vis-a-vis relevant findings of the lower Court. ( 8 ) IN her evidence opposite party as P. W. 1 has denied of any source of income, much less an income of Rs. 50/- as a weaver, P. W. 2 denied to the suggestion that the opposite party works as a weaver in Dallailama Society and the next sentence was written that she is getting Rs. 20/- per day. Relevant portion of the evidence of P. W. 2 is quoted herewith "the petitioner is a weaver. He denies the suggestion that the petitioner works in Dalailama Society. She is getting Rs. 30/- per day. Learned Judge, Family Court, in that context, held that :-"from the evidence of the parties it was piloted by the learned Counsel for the O. P. that P. W. 2 who is the grandfather of the petitioner has admitted that the petitioner works as a weaver and gets some income. The counsel further added that she has been working in Dallailama society and is getting Rs. 30/- per day. A close look to the evidence of P. W. 2 would show that the above submission is a mis-placement of fact. P. W. 2 has stated as follows : he (P. W. 2) denies the suggestion that the petitioner works in Dailailama society. She is getting Rs. 50/- per day. To my little knowledge the fact that the petitioner is employed in Dallailama society has been denied by P. W. 2. The suggestion has probably been given in a conjuctive manner but has been disjunctively written in the evidence, it should be read as follows :-That the witness has denied that the petitioner works in Dallailama society and gets Rs. 30/ per day. " ( 9 ) LEARNED counsel for the petitioner argued that evidence of P. W. 2 was not properly analysed by Judge, Family Court. That criticism does not appear to be correct. On a composite reading of the entire deposition of P. W. 2, this Court finds that interpretation of the evidence of P. W. 2 relating to the suggestion on daily income of the opposite party was correctly interpreted and assessed by the Judge, Family Court. It may be noted that such evidence was recorded by his predecessor in office. On a composite reading of the entire deposition of P. W. 2, this Court finds that interpretation of the evidence of P. W. 2 relating to the suggestion on daily income of the opposite party was correctly interpreted and assessed by the Judge, Family Court. It may be noted that such evidence was recorded by his predecessor in office. For the the sake of discussion even if the evidence of P. W. 2 will be read as a statement regarding the daily income such stray statement does not clinchingly prove the contention of the petitioner that opposite party has any employment and income. On a reference in that context to other evidence on record it appears that opposite party as O. P. W. No. 4 has stated that her three sisters-in-law (brother's wife) work as weavers and together they got around Rs. 50/- to Rs. 60/- per day. P. W. 3 who is the brother of opposite party has denied to the suggestion that opposite party works as a weaver and gets an income of Rs. 50/- per day. P. W. 4, a co-villager has also stated in his examination-in-chief that opposite party has no source of income of her own. That evidence of P. W. 4 was not at all challenged, though a suggestion was given that a female weaver gets about Rs. 40/- to Rs. 50/- as wage per day. O. P. W. No. 1 is a cousin of the petitioner and a member of the Caste Committee has stated nothing if opposite party earns anything. O. P. W. No. 2 who is the president of that Committee also did not state anything if opposite party works as a weaver and earns anything. O. P. W. No. 3 who is a person belongs to the same caste of the parties stated that the opposite party works as a weaver and her daily income was between Rs. 50/- and Rs. 100/- though according to him he and his two sons working as weavers together earn around Rs. 3000/- to Rs. 3500/- per month i. e. about Rs. 60/, to Rs. 65/- per day. Petitioner as O. P. W. No. 4 in his examination-in-chief stated that the opposite party working as a weaver earns Rs. 40/- to Rs. 50/- per day. 100/- though according to him he and his two sons working as weavers together earn around Rs. 3000/- to Rs. 3500/- per month i. e. about Rs. 60/, to Rs. 65/- per day. Petitioner as O. P. W. No. 4 in his examination-in-chief stated that the opposite party working as a weaver earns Rs. 40/- to Rs. 50/- per day. Aforesaid evidence of all the 6 witnesses does not satisfactorily prove that opposite party has worked as a weaver and has maintained her livelihood. Petitioner in his pursuit to defeat the claim of the opposite party took this plea and in the manner of beating around the bush he went on examining one after another witness, who gave the source of income of the opposite party in different manner as indicated above which varies from Rs. 30/- to Rs. 100/- per day. When according to the petitioner, opposite party works as a weaver in a society, if not wanted to prove the case of employment and income of the opposite party, he should have called for the records and registers of the society regarding payment of wages or should have examined some persons from that society to prove her average monthly income. Petitioner did not adduce any such evidence. Apart from that petitioner also did not lead evidence to prove if the opposite party has a regular employment as a weaver. Under such circumstances, case advanced by the petitioner that opposite party is a weaver and earns her livelihood with a daily income of Rs. 50/- per day is not acceptable. So far as petitioner's own income is concerned, in that respect finding recorded by the Judge, Family Court is found to be based on respectable appreciation of evidence in record. Thus, argument advanced by the petitioner that the opposite party is not entitled to maintenance on the ground that she has a source of income is not accepted. ( 10 ) THE quantum of maintenance which has been granted in favour of the opposite party is Rs. 150/- per month and in the absence of any adverse circumstance there is nothing to interfere with that order. Accordingly, the impugned judgment is upheld and the criminal revision is dismissed. Revision dismissed.