JUDGMENT C.A. Rahim, J.
1. This Revision has been preferred against the judgment and order dated 9.3.1995 passed by the Family Judge, Meerut, in Maintenance Application No. 344/1993 under Section 125, Cr.P.C. By that order the learned Judge allowed maintenance to the petitioner at the rate of Rs. 300/- per month and Rs. 200/- per month to daughter of the petitioner. Against that order the opposite party Shaukat, against whom the order was passed has preferred this Revision. The learned Counsel has submitted that the learned Judge erred in law in ignoring the contradiction appearing in the statement of wife of the revisionist and without applying the mind allowed the maintenance application. It has also been submitted that the learned Judge did not consider the attending facts and circumstances, including income of the revisionist and that the amount of maintenance is excessive.
2. The opposite party i.e. wife of the revisionist filed an application for maintenance on the ground that the revisionist driven out after assaulting her for which she alongwith her daughter left the house of her husband and went to her parents house. Father of the opposite party when contacted, the revisionist asked for Rs. 20,000/ - and when he failed to pay the amount the revisionist refused to take her to his house. It has been stated that she is an illiterate lady and staying in the house of her parents who are poor and as such she has become burden to them. On the other hand the revisionist is earning Rs. 5,000/- per month after doing some manufacturing job of iron materials. She claimed Rs. 500/- for herself and Rs. 300/- for her daughter.
3. The revisionist filed a written statement denying all the allegation, stated inter alia, that the opposite party always insisted upon him to stay with her parents, which he did not agree. He denied the demand of dowery or that she was driven away from the house after assaulting her. When contacted for her return the members of her parents family refused to send her to his house. The opposite party used to do tailoring shop for which she could earn her livelihood. She is also able to maintain her daughter. He has further stated that he is un-employed and earning somehow by pulling rickshaw. She is not entitled to any maintenance nor he has capacity to pay any maintenance.
4. The contention of the learned counsel that the learned Judge did not consider the contradictory statement and did not apply his mind in deciding the case could not be substantiated by him during the arguments. After reading the judgment I find that the learned Judge has considered the submissions of both the sides and came to a finding as a result of which he has allowed maintenance to the opposite party and her daughter. In the Revision it is not possible to re-assess the evidence and substitute a different finding when there is no material irregularity or illegality in appreciating the evidence by the learned Judge.
5. With regard to the amount of maintenance it appears that the revisionist has stated that he was earning Rs. 200-250 per month by pulling rickshaw. The opposite party's statement with regard to the income of the revisionist was that he earns Rs. 5,000/- per month by doing manufacturing job of iron materials. It appears from the judgment that none of the parties produced any document or any corroborative evidence in support of their contention with regard to the income. He has taken judicial notice of the fact that a rickshaw puller earns Rs. 50-60 per day and accordingly earns Rs. 1,500-1,800/- per month and on that basis he has awarded maintenance. The learned Counsel .has submitted that the assessment made by the learned Judge was not based on any evidence. Accordingly the order passed by the learned Judge is bad in law. The contention of the learned Counsel is justified that on these matters the Courts should not substitute own finding without having any basis on evidences. The learned Judge should have asked the party to substantiate the statement with regard to the avocation and income of the revisionist. When the Judge did not do so, I find that the quantum of maintenance awarded is excessive. After going through the entire matter I find that the quantum of maintenance if fixed at Rs. 200/- per month each would meet the ends of justice.
6. It has been submitted that without assigning any reason the learned Judge has allowed maintenance from the date of the application, which is barred according to Section 125(2), Cr.P.C. In the case of Basant Lal v. The State of U.P. and Ors., reported in 1995 All. L.J. 1612 it has been held that:
".....Moreover, the absence of reasons for ordering the payment of maintenance from the date of the application, cannot justify denial of the rightful and lawful claim for maintenance from the date of the application which vested in the claimant under the law. Therefore, there appears to be no alternative except to strike down this obnoxious, unreasonable, arbitrary and unfair provision contained in Sub-section (2) of Section 125. Cr.P.C. Therefore Sub-section (2) of Section 125, Cr. P.C. is held and declared ultravires of Article 14 of the Constitution of India and it cannot be pleaded as a ground to challenge the validity of the order of maintenance directing its payment from the date of the application."
7. In view of the said decision I also find that for the lapse of incorporating the reasons the learned Judge/Magistrate cannot invalidate the claim of the petitioner for their maintenance from the date of the application when it appear that parents of the opposite party are poor and cannot bear the burden of the wife and daughter of the revisionist. Accordingly, I find that though the learned Judge has not mentioned reason for allowing their maintenance from the date of the application, the opposite party is entitled to receive it as such.
The Revision is allowed in part. The opposite party and her daughter shall be entitled to receive maintenance at the rate of Rs. 200/- from 15.8.1993, as ordered. The judgment and order dated 9.3.1995 is modified accordingly. The arrear maintenance till to day shall be paid at the rate of Rs. 400/- per month along-with the current maintenance from the month of January, 1996, to be paid within 10th of each month.