Judgment:
S.D. Jha, J.
1. By this petition the petitioner/wife challenges order dated 26.8 1986 passed by the Judicial Magistrate, 1st Class, Depalpur dismissing petitioner's claim for maintenance from respondent/husband.
2. Petitioner wife presented application for maintenance @ 500/- per month from respondent/husband, in the Court of Judicial Magistrate, 1st class, Depalpur. Petitioner's case briefly stated was that she was married to respondent at Depalpur according to Mohammedan rites some four years before the date of presentation of the claim application. After marriage petitioner and respondent lived together for some time. The petitioner alleged cruelty and desertion also against the respondent but they are now not material for disposal of the present revision petition. The petitioner alleged that respondent drove her away from the house and since then she has been living with her parents. The respondent had married a second time. He is engaged in the work of welding and makes good income from the business. The petitioner alleged that respondent even though possessed of sufficient means, has declined and refused to maintain the petitioner. On these ground she claimed maintenance @ 500/- per month.
3. The respondent in his reply admitted his marriage with petitioner according to Mohammedan rites. In para 10 of his reply he also admitted that he had married a second time but denied his liability to pay maintenance to petitioners wife. He offered to keep the petitioner with him and maintain her and submitted that the petitioner/wife is living away from the respondent with-out any sufficient reason and, therefore, is not entitled to receive maintenance allowance from him.
4. The Judicial Magistrate by order dated 28.8.86 inter alia found that the petitioner has failed to prove her allegations. She had on her own left the respondent/husband and had failed to prove sufficient cause for living away from him. He, therefore, dismissed the application for maintenance allowance.
5. At the hearing of the revision petition Shri S.R. Verma learned Counsel representing respondent/husband relying on Rule 15 of Chapter IV of the High Court Rules & Orders in M.P. referred to in Hariram Singh v. Manohar Rao and Anr., (1991 JLJ 132) raised preliminary objection that revision petition presented to this Court has been presented in violation of the above Rule. Rule 15 of Chapter IV of the High Court Rules & Orders in M.P. is in the following words :
'5. No petition for revision of an original order of a Magistrate shall be entertained unless it is accompanied by a copy of the order of the District Magistrate or Sessions Judge concerned refusing to refer the case to the High Court.'
The rule would not be an impediment to this Court exercising revisional powers over the orders passed by the Judicial Magistrate First Class. Besides even in the decision the Court in spite of Rule had heard the revision itself against the order passed by the S.D.M. Damoh even though the Sessions Judge, Damoh had not been moved against the order. The preliminary objection raised by Shri Verma does not impede hearing of revision petition by this Court,
6. Shri S. Kulshreshtha learned Counsel for the petitioner submitted that respondent/husband admitted having contracted second marriage even though his marriage with the petitioner/wife was subsisting. This was, under explanation to Sub-section (3) of Section 125 of the Code of Criminal Procedure, 1973 just ground for the petitioner/wife's refusal to live with the respondent. The Judicial Magistrate, was, therefore, in erro in holding that the petitioner-wife was living separately from the respondent without sufficient reason. He further submitted that the respondent made good earning from welding business and the petitioner should therefore be awarded reasonable sum for her maintenaance.
7. Shri S.R. Verma relying on Shantabai v. Heelubhai; (1985 MPWN Note No. 125) submitted that while hearing revision petition this Court could not reappreciate the evidence. In the instant case the respondent in para 10 of his reply to the application for maintenance admitted that he had contracted second marriage though he had tried to explain that he had been compelled to do so on account of behaviour of the petitioner/wife. This position was not disputed even during argument. During argument it was also admitted that marriage between the petitioner and respondent was subsisting. This would immediately attract explanation following second proviso to Sub-section (3) of Section 125 of the Code of Criminal Procedure, 1973 which reads as under ;
'Explanation -- If a husband had contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.'
In the face of this explanation and the admission by the respondent/ husband that he had contracted second marriage, the Judicial Magistrate was legally in error in holding that the petitioner/wife was living separately from the husband without sufficient reason.
8. Shri Verma's contention that this Court cannot reappreciate evidence is not applicable because clearly the Judicial Magistrate has overlooked an express provision of law. It is not a question of mere appreciation of evidence.
9. On respondent's own admission, he earns Rs. 300/- per month. According to the petitioner respondent's earning is in order of Rs. 100/- to 150/- per day. Considering the evidence as a whole, it would be just and proper to call upon the respondent/husband to pay to the petitioner Rs. 125/- per month from the date of the order passed by the Judicial Magistrate i.e. 26.8.1986. Ordered accordingly.
10. The revision is accepted in the foregoing terms.