D. J. JAGANNADHA RAJU, J.

( 1 ) THIS petition is filed under Section 482 Cr. P. C. in maintenance proceedings. The petitioner-husband claims that the order of maintenance passed in M. C. No. 41 of 1988 on the file of the Judicial First Class Magistrate, Alur, which was confirmed in Criminal revision Petition 47 of 1990 should be set aside on the ground that in the petition filed by the wife, there is no averment to the affect that she is unable to maintain herself.

( 2 ) MR. O. Manohar Reddy, who argued the case of the revision petitioner contends that after the amendment of Section 125 of the Criminal Procedure Code, it is incumbent on the person claiming maintenance to aver that he or she is unable to maintain herself. That is the foundation of the claim and in addition to that, the petitioner should establish refusal or neglect to maintain. He relies upon three decisions in support of the argument.

( 3 ) IT is an admitted fact that in the petition filed under Section 125 Cr. P. C. the petitioner in this case did not make an averment to the effect that she is unable to maintain herself. In paragraph 6 of the petition she stated that she was residing with the brother of her grand-father Ramanjanaiah as shedid not want to go back to her parents house, who considered her as a burden on them.

( 4 ) MR. Somakonda Reddy appearing for the respondent wife contends that this averment in substance indicates that she is unable to maintain herself.

( 5 ) IN the course of evidence, P. W. I did not mention that she is unable to maintain herself. Another interesting fact is that in the counter filed by the husband, no objection was taken on this particular ground. The trial Court as well as the revisional court have categorically recorded findings to the effect that she is unable to maintain herself. In this background, we have to see whether relief can be granted to the petitioner-husband in this petition under Section 482 Cr. P. C, on the technical grounu that there is no averment to the affect that she is unable to maintain herself

( 6 ) IN Manmohan Singh vs. Mahindrakaur a single Judge of the Allahabad High court laid down that under Section 125 (i) (a) Crp. C. maintenance allowance cannot be granted to every wife who is neglected by her husband or whose husband refuses to maintain her but can only be granted to a wife who is unable to maintain herself. The court pointed out that as it was not alleged in the application that she was unable to maintain herself and as the Chief Judicial Magistrate as well as the Sessions Judge did not record a finding to the effect that she was unable to maintain herself, the order of maintenance was struck down. To similar effect is a single Judge decision of the karnataka High Court in Zubeda Bi vs. Abdul Khader. The learned Judge held that in view of the amendment made in the Criminal Procedure Code and the addition of the words "unable to maintain herself" which is a departure from the old Code. The petitioner must positively aver in her petition that she is unable to maintain herself in addition to the facts that her husband has sufficient means to maintain her and he has neglected to maintain her. Haunsabai vs. Balakrishna is another single Judge decision of the Karnataka High Court which lays down that Section 125 contemplates that maintenance should be provided only to a wife who is unable to maintain herself or has no sufficient means to maintain herself and therefore where in her petition for maintenance the wife failed to aver positively that she was unable to maintain herself and substantiate it by adducing evidence, the petition will have to fail. These three decisions relied upon by the petitioner s advocate have been considered in a Division bench Decision of the Karnataka High Court in Malan vs. Baburao. After specifically referring to all these decisions and after referring to the provisions of section 125 Cr. P. C. after amendment, the division Bench observed in paragraph 10 as follows:"

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