ORDER

1. Leave granted.

2. This appeal by special leave arises from the order of the Single Judge dated 17-12-1990 of the High Court of Allahabad made in Civil Miscellaneous W. P. No. 706 of 1990. The undisputed facts are that the appellant and Mrs. Geeta, the respondent, are a legally married couple. Their marriage was solemnized on 22-11-1981. The respondent laid the proceedings under Section 125 of the Code of Criminal Procedure, 1973 (for short, the Code) on 14-7-1987 for maintenance on the ground that the appellant is impotent and he neglected her and that, therefore, she claimed maintenance for separate residence from the appellant. The learned magistrate awarded a sum of Rs. 500 per month w.e.f. the date of filing of the petition. On revision the Sessions Judge confirmed the same. The High Court dismissed the writ petition filed under Article 226 of the Constitution of India by the impugned order. Thus, this appeal by special leave.

3. The only question raised by Shri S. C. Birla, the learned counsel for the appellant, is that the appellant had not neglected to maintain Mrs. Geeta. The very foundation for claiming maintenance under Section 125 of the Code is that the appellant had neglected to maintain the respondent and that the respondent was not having sufficient means for her self-maintenance. We are unable to agree with the appellant. Section 125(1) of the Code envisages that :

"(1) If any person having sufficient means neglects or refuses of maintain -

(a) his wife, unable to maintain herself, or

(b) * * *

(c) * * *

(d) * * *

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct."

4. The courts below found as a fact that the appellant was impotent and he was not capable of giving sexual satisfaction to the respondent, in consequence, it amounts to cruelty and that, therefore, the respondent is entitled to live separately from the appellant. Since she was unable to maintain herself, she is entitled to seek maintenance from the appellant. We find that the view taken by the High Court is well-justified. The controversy is no longer res integra.

5. In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, this Court considered the question arising in the proceedings under Section 125 itself. This Court held that : (SCC pp. 258-62, paras 21-34)

"If this is so, can it be said by an stretch of imagination that where a wife refuses to live with her husband if he is impotent and unable to discharge his marital obligation, this would not be a just ground for refusing to live with her husband when it seems to us that the ground of impotence which had been held by a number of authorities under the civil law to be a good ground not only for restitution of conjugal rights but also for divorce. Indeed, if this could be ground for divorce or for an action for restitution of conjugal rights, could it be said with any show of force that it would not be a just ground for the wife to refuse to live with her husband. The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same.

We hold that where it is proved to the satisfaction of the court that a