P.K. Jain, J.@mdashList has been revised. Heard Shri Z.K. Husain holding brief of Shri R.K. Jain, learned Counsel for the revisionist and learned
A.G.A. for the State. None appears for opposite party No. 1.
2. Opposite party No. 1 claiming to be wife of the revisionist moved an application u/s 125, Code of Criminal Procedure claiming maintenance
allowance for herself and for her minor child being son of the revisionist. The trial court rejected the application holding that, wife left the house of
the husband out of her own free will. Revision preferred by the wife was allowed by the revisional court and maintenance allowance of Rs. 100 per
month was awarded to the wife and at the rate of Rs. 150 per month was awarded to the minor son, Shamshad. It is this order of the revisional
court which is being challenged in this revision.
3. The main contention of the learned Counsel for the revisionist is that the trial court having carefully considered the evidence of the parties arrived
at the finding that the wife was living separately but of her own free will and, therefore, she was not entitled to claim maintenance allowance. The
revisional court disturbed this finding of fact and substituted its own finding which was not permissible while hearing and disposing of the criminal
revision.
4. Learned A.G.A. contended that, so far as son is concerned there is no finding of the trial court that the son was not entitled to maintenance
allowance and the revisional court awarded maintenance allowance on cogent grounds. Shamshad, the son has not been impleaded as party to the
present revision before this Court hence the order of the revisional court against Shamshad has become final.
5. There cannot be dispute about the legal position that while hearing and disposing of the criminal revision, the revisional court cannot substitute its
own findings of fact after disturbing the findings of fact arrived at by the trial court. The revisional court has, therefore, committed error in
substituting its own findings of fact. If the revisional court was of the view that findings of fact arrived at by the trial court were perverse, the
revisional court could have remanded the case for decision afresh.
6. As regards the order of the revisional court in respect of maintenance allowance awarded to Shamshad, the minor son, I agree with learned
A.G.A. that the order of the revisional court has become final as the son has not been impleaded as party to the present revision. The order of the
revisional court cannot be disturbed unless Shamshad was heard as provided u/s 401, Sub-clause (2), Code of Criminal Procedure which
provides as follows:
No order under the section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either
personally or by pleader in his own defence.
7. In view of the foregoing discussion, the order of the revisional court awarding maintenance allowance to Shamshad is confirmed subject to
modification that in view of the provisions of Section 125(1)(c), Code of Criminal Procedure he would be entitled to maintenance allowance till he
attains majority. As regards the order of the revisional court allowing maintenance allowance to Smt. Nafisa Begam the judgment and order of the
revisional court to this extent is set aside and the case is remanded for hearing and disposal of the revision afresh in the light of the observations
made in the body of the judgment.
The stay orders dated 24.11.1983 and 22.5.1984 are vacated.