JUDGMENT
R.L. Gupta, J.
1. These two revision petitions are directed against an order dated 23.9.89 of the learned Metropolitan Magistrate, New Delhi by which .she allowed maintenance under Section 125 of the Code of Criminal Procedure (Code for short) to the wife at the rate of Rs. 150/- per month from the date of the application till 22.9.89 and at the rate of Rs. 35U/- per month from the date of the order. Criminal Revision 232/89 is by the wife because she feels that the maintenance is on lower side and prays that the amount may be enhanced to Rs. 500/- p.m. from the date of the application as also a sum of Rs. 10,000/- may be awarded to her as the litigation costs. On the other hand the Criminal Revision 4/90 filed by the husband Manohar Singh seeks that in view of the fact that he had been paying Rs. 150/- per month as maintenance allowance to the wife, the impugned order may be set aside to the extent of directing the husband to pay Rs. 350/- per month. From the relief claimed by the husband, it appears that he is aggrieved only against the quantum of maintenance. For the sake of convenience, I would describe the wife as petitioner and the husband as respondent. The petitioner filed an application under Section 125 of the Code on the allegations that she was married to the respondent on 9.5.76. No issue was born out of the wedlock. The respondent never treated her properly and his behavior was always cruel for the reason that she had brought in-adequate dowry. On 16.4.1977 the petitioner claimed to have been thrown out from the matrimonial home i.e. A-371, Chand Nagar, Chowkhandi. Her dowry articles worth Rs. 10.000/- were also retained by the respondent. She also expressed her willingness to still live with the respondent. The salary of the respondent was stated to be Rs. 800/- per month. He also being the co-owner of the aforesaid house was alleged to be getting Rs. 200/- per month as rental income of his share.
2. The respondent contested the application. By way of preliminary objection he said that in a petition under Section 9 of the Hindu Marriage Act in the court of Sh. P.L. Singla, the petitioner was proved to be employed with M/s Bhurji Electricals, Industrial Area, Naraina at Rs. 225/- per month and thus the application was infructuous. Petitioner was alleged to be abnormal in behavior and inefficient in performing her duty as a wife. She was also alleged to be suffering from some kind of female disease on account of which she avoid-ed co-habitation causing mental and physical agony to the respondent. The allegations of demand of dowry and turning her out of the matrimonial home were denied. Rather she alleged to have left the house of her own accord on 5.4.1977 by deserting the respondent. At that time she was also alleged to have taken away all articles, ornaments and clothes etc.
3. The parties led their evidence. Divorce proceedings were also pending between the parties and vide judgment dated November 18, 1982 the learned ADJ, Delhi dissolved the marriage of the parties by a decree of divorce. It was held that the respondent was guilty of having practiced cruelty upon the petitioner and was also guilty of desertion for a continuous period of more than 2 years.
4. I have heard arguments advanced by learned counsel for the parties. It may be noted that the judgment of the Matrimonial Court is binding between the parties under Section 41 of the Indian Evidence Act, 1872. Learned counsel for the respondent, however, argued that the respondent did not seriously contest the divorce proceedings because an understanding was reached between the parties that the respondent shall go on paying Rs. 150/- per month to the petitioner and, therefore, no adverse inference may be drawn against the respondent. He has further submitted that a letter dated 9.4.77 written by the petitioner to him clearly showed that in fact she had gone from the matrimonial home happily and her case that she was thrown out forcibly is falsified by this letter. But it may be noted that when the petitioner was examined as a witness in her divorce petition, this letter was not put to her. Learned counsel for the respondent argued that since this letter had already been filed in these proceedings, he could not confront her with this letter. This argument has no merit. A certified copy of this letter could be obtained and by summoning the file of the present proceedings, (he letter could have been put to the petitioner. This course was not adopted. In the absence of this course having been adopted by the respondent the marriage between the parties was dissolved by a decree of divorce, A certified copy of that judgment is Ex. D4. It was clearly held in this judgment that from the start the respondent had been giving beating to the petitioner and her statement that he was dis-satisfied with her dowry must be believed. It was also held that she had been turned of (he house after giving beating on 16.4.77 by the respondent. In view of this finding, it is not possible to accept the argument of the learned counsel for the respondent.
5. Moreover even the prayer clause in the revision petition filed by the respondent seeks sustenance of the maintenance order to the extent of Rs. 150/- per month only. He is aggrieved because the quantum has been fixed at Rs. 350/- per month. Therefore, I am satisfied that the respondent had turned out the petitioner after giving beating to her and thus neglected to maintain her. The findings of the learned Metropolitan Magistrate in this respect are affirmed.
6. So far as the quantum is concerned, it may be noted that in his own statement in cross-examination on 5.9.88 the respondent admitted that his salary at that time was Rs. 1520/- per month since 1.6.87. He denied the suggestion that he was the co-owner of the house in Chowkhandi and that he was getting rental income of Rs. 200/- per month. But his mother Scat. Ram Kaur as RW2 admitted in her cross-examination that the respondent and her other son Karam Singh were the joint owners of Chawkhandi house. She, however, denied if respondent was, getting rental income from the said house. The later part of her statement is obviously wrong. The respondent does not reside in Chowkhandi house and, therefore, it must be presumed that he was getting rent from that house. He even denied his co-ownership in respect of that house. The statement of the petitioner to the effect that he was getting about Rs. 200/- per month as rent must be believed. Therefore, the total income of the respondent is proved to be Rs. 1520/- plus Rs. 200/- i.e. Rs. 1720/- per month.
7. It is an admitted case that the respondent has gone in for a second marriage and has no issue from the second marriage. It goes without saying that the respondent is primarily liable for the maintenance of the petitioner so long as she does not re-marry. The respondent is claimed to be supporting his sister and mother. But the mother has no ration card with the respondent and the sister is also married. Therefore, there is no other liability resting on the shoulders of the respondent. Taking into consideration the total income of the respondent, I am of the view that maintenance at the rate of Rs. 450/- would be just and reasonable. The fixation of the maintenance allowance at the rate of Rs. 150/- per month from the date of the application seems to be justified in the totality of the circumstances of the case. The interim maintenance at the rate of Rs. 300/- per month was ordered by the Metropolitan Magistrate vide her order dated l3.l2.85. In revision the learned ASJ vide order dated 30.4.87 reduced the amount to Rs. 150/- per month. That order seems to be final between the parties.
8. In view of what has been stated above the petitioner is awarded F maintenance at the rate of Rs. 450/- per month from 23.9.89 i.e. the date of the order of the learned Metropolitan Magistrate.
9. Taking into consideration all the circumstances, it seems appropriate to leave the parties to bear their own costs. Both the revision petitions are accordingly disposed off.