JUDGMENT Hon’ble N.A. Moonis. J.—The present revision has been preferred by Smt. Kalpana Ojha against the judgment and order dated 26.7.2009 passed by Sri Taj Bahadur Singh, Additional Principal Judge (Family Court) Allahabad whereby the application under Section 125 Cr.P.C. moved by the revisionist was rejected by the Judge Family Court, Allahabad in Case No. 203 of 2004 (Kalpana Ojha v. Rama Lala Ojha) and the maintenance allowance to the tune of Rs. 800/- per month was granted to the minor daughter Mukta from the date of the application. 2. From the perusal of the record it reveals that the revisionist was legally wedded wife of the opposite party Ram Lala Ojha. Their marital ceremony was performed on 21.2.2000 in accordance with Hindu customs and rites. There was no bickering between the husband and wife at the time of marriage. Sufficient dowry was given to the opposite party by the parents of the revisionist. The revisionist was also discharging her marital obligations without any rift. The in-laws, husband and other family members were not satisfied with the dowry given at the time of the marriage. They were exerting undue pressure upon the revisionist to fetch more dowry so that the opposite party (husband) may open coaching institute. Inability was shown on the part of parents of the revisionist ,the revisionist was humiliated and tortured. She had to face the brunt of the husband and in-laws. In the meantime ,a girl baby was borne out of their union but the in-laws and the husband did not abandon the habit of persecuting her. A gram panchayat was held at the instance of the father of the revisionist to bring an end to their marital bickering but the in-laws and the husband did not concede to the suggestions of the gram panchayat and revisionist went on bearing the brunt of the in-laws and the husband. She was brutally beaten on the issue of dowry as her parents could not fulfil their more demand of dowry. Out of chagrin, the revisionist left the marital house and decided to live with her parents. She filed application under Section 125 Cr.P.C. claiming maintenance allowance for self as well as her minor daughter. On the other hand husband filed a suit for divorce in which written statement was filed on behalf of the wife. Out of chagrin, the revisionist left the marital house and decided to live with her parents. She filed application under Section 125 Cr.P.C. claiming maintenance allowance for self as well as her minor daughter. On the other hand husband filed a suit for divorce in which written statement was filed on behalf of the wife. She contested the suit and filed application narrating the entire episode of the dowry ,torture and mis-behaviour and also their ill-will to usurp the entire dowry given at the time of marriage. It was averred by her that she was totally dependant upon her parents who were providing amenities to the best of their capabilities for the maintenance of revisionist and her minor daughter from 2003. Her father had retired from service. He did not have sufficient means to contest the suit filed by the husband. Her parents were hardly arranging both end meals. She was living with her parents and was solely dependant upon them. Since the father of the revisionist had retired from service and was an aged one therefore, she was facing worst days of life as she did not have any source for survival. The husband owns a house and had earning to the tune of Rs. 20,000/- from coaching institute. The opposite party (husband) had also agricultural land from which he earns about Rs. 5.00 Lacs per year. The opposite party is absolutely responsible to maintain the revisionist as well as her minor daughter. The revisionist claims Rs. 8,000/- for herself and Rs. 6,000/- for her minor daughter. The opposite party No. 2 filed written statement /objection with regard to factum of marriage denying the demand of dowry. It was also stressed that no such inflated amount was spent at the time of solemnisation of marriage. The revisionist was never harassed or abused for fetching less dowry. The revisionist herself is a mentally retarded lady and had on one occasion assaulted to the opposite party with knife as a result of which he sustained injuries. This incident was duly informed to the father of the revisionist. The revisionist had taken away all the ornaments worth Rs. 50,000/- in respect of which he had informed to the police authorities. The allegations made in the application under Section 125 Cr.P.C. are absolutely bogus, false and vague. The revisionist herself had created the ugly situation to live separately. This incident was duly informed to the father of the revisionist. The revisionist had taken away all the ornaments worth Rs. 50,000/- in respect of which he had informed to the police authorities. The allegations made in the application under Section 125 Cr.P.C. are absolutely bogus, false and vague. The revisionist herself had created the ugly situation to live separately. The opposite party is only an educated person but had no source of income as mentioned in the application. The application under Section 125 Cr.P.C. having been filed on incorrect facts and grounds may be rejected out right. 3. In support of the contention claiming maintenance , statement of the revisionist was recorded as P.W.1. No documentary evidence was filed by her. The husband in support of his contention had examined himself as D.W.1. No other documentary evidence was filed by him. After considering the oral and documentary evidence , the Court below accepted the version of the revisionist and had come to the conclusion that the revisionist herself had left the house of her husband on the ground of not providing good quality of food at the matrimonial house. She is living in her parental house. No valid cause was shown by the revisionist to live separately from her husband. In such circumstances, the revisionist is not entitled to get any maintenance allowance. After analysing the factum of birth of girl baby out of their union, the Court below conceded their marital knot. Since the liability to maintain the baby is devolved upon the parents and the husband in his statement accepted that he was a B.T.C. teacher hence it cannot be said that he is not employed and he is responsible to maintain her minor daughter. 4. In these circumstances the learned Judge Family Court allowed the application under Section 125 Cr.P.C. partly directing the husband to pay Rs. 800/- to the minor daughter towards maintenance from the date of order till she attains the age of majority. No maintenance was granted to the wife and the application for maintenance to the wife was rejected. 5. Aggrieved by the order dated 26.7.2007 passed by the Judge (Family Court) Allahabad , the revisionist who is the wife of the opposite party preferred the present revision staking her claim for maintenance allowance. No maintenance was granted to the wife and the application for maintenance to the wife was rejected. 5. Aggrieved by the order dated 26.7.2007 passed by the Judge (Family Court) Allahabad , the revisionist who is the wife of the opposite party preferred the present revision staking her claim for maintenance allowance. It is contended by learned counsel for the revisionist that the evidence from her side has not been considered by the Court below in true perspective. Casual approach was taken by the Court below denying any amount of maintenance to the wife which has resulted into grave injustice to the revisionist. Divorce suit was filed by the husband against the wife which is sufficient to show that husband is not willing to maintain her wife. The wife had filed a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal right. The Court below erred in law by holding that the wife is not entitled to any maintenance allowance and had drawn wrong inference as that she did not like the quality of food given at the house of in-laws on account of which she has herself left the matrimonial home and is residing at her parental house. Merely on this statement, the Court below came to the conclusion that the wife had voluntarily left the house of the husband therefore, she is not entitled to get any maintenance allowance. It is further contended that the Court below had lost sight of the fact that the revisionist is the legally wedded wife of the opposite party and a baby girl has borne out of their union. The husband had sufficient source of income and granting the maintenance only to the baby girl and ignoring the wife is not only against the aims and spirit of the Section 125 Cr.P.C. but also results into deprivation of maintenance allowance to the wife for ever which will force her to lead immoral and vagrant life as the wife is an unemployed lady and the maintenance granted to the child is also not sufficient to maintain the child in these hard days. Duty is cast upon the husband to maintain wife and the child both. Duty is cast upon the husband to maintain wife and the child both. On the other hand learned counsel appearing on behalf of the opposite party supported the judgment passed by the Court below and has emphasised that the Court below has acted in accordance with law by granting the maintenance to the minor girl baby. The revisionist has herself left the in-laws house on the fact that good quality of food was not given to her at her marital house. The Court below rightly rejected the claim of the revisionist and had granted maintenance allowance to the child keeping her future prospect. 6. After going through the evidence on record, it appears that the order passed by the Court below is based upon mis-appraisal of evidence and misconstruction of facts. While moving the application under Section 125 Cr.P.C. the applicant had nowhere stated that she had left the house of in-laws on the ground of not providing the good quality of food. This fact was only disclosed in the cross-examination during trial. There is no whisper of this fact in the pleading. Merely on the basis of disclosure of aforesaid fact in the cross-examination the Court below drew wrong inference of disallowing the maintenance to the revisionist which culminates into grave injustice with abandoned lady. The Court below lost the sight of the fact that the revisionist is legally wedded wife and has no source for survival and out of their wedlock, a baby girl was borne. The responsibility to maintain revisionist as well as her baby girl was cast upon the husband who had to support them. The Court below did not delve into the natural aspect of the case and has taken erroneous view of denying maintenance allowance to the revisionist merely relying that she was not given good quality of good at the matrimonial house. There is no convincing material on record to show that the wife is living separately voluntarily. The Court below has also ignored that only upon proof of circumstances laid down in Section 125 (4) Cr.P.C. maintenance to the wife will be refused. There is no convincing material on record to show that the wife is living separately voluntarily. The Court below has also ignored that only upon proof of circumstances laid down in Section 125 (4) Cr.P.C. maintenance to the wife will be refused. Section 125 (4) Cr.P.C. is reproduced as under : “No wife shall be entitled to receive an (allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be) from her husband under this section if she 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.” 7. On account of mis-appreciation of facts and evidence on record the order passed by the Court below is not tenable in the eyes of law. The order passed by the Court below to the extent of refusal of maintenance to the revisionist (wife) is set aside. The maintenance granted to the baby child by the Court below is upheld. The revision is allowed. The matter is remitted back to the Court below to decide the issue of maintenance afresh with respect to revisionist after giving due opportunity to the parties and also taking through the evidence led by them. It is expected that the Court below will pass reasoned order as early as possible preferably within six months. ————