A wife claiming maintenance under S. 125 Crl. P. C. must aver and prove that she is unable to maintain herself, in addition to proving the neglect and refusal to maintain by the husband.

( 1 ) BEING aggrieved by the order dated 16th November, 1978 passed by the addl. Sessions Judge, Belgaum, in cr. R. P. No. 25 1978 setting aside the order dated 3rd July, 1978, passed by the Prl. Munsift and J. M. F. C, Hukeri, in M. P. No. 75/76, wife of the respondent has filed this revision. The revision petitioner, wife of the respondent, made a petition under S. 125 Crl. P. C. claiming maintenance from the respondent, her husband, on the ground that he had ill-treated and driven her out of the house and refused to maintain her in spite of being possessed of sufficient means to provide the maintenance. She also alleged, the respondent, her husband, had taken another wife in marriage. She claimed rs. 150 per month as maintenance. Respondent denied all these allegations and further contended that petitioner had gone to her parent's house on her own and had not returned. He also offered to maintain her if she lived with him. Regarding the amount of maintenance claimed, he contended, it was exorbitant. At the hearing of the, petition, the petitioner examined herself as P. W. 1 she, also examined her father as P. W. 2 and one Basappa as P. W. 3 and another Rajasekaragouda, Police patil as P. W- 4. Respondent examined himself as D. W. 1 and Hussain Saheb as D. W. 2.

( 2 ) ON the basis of the evidence before him, the learned Magistrate held, not only respondent had neglected and refused to maintain the petitioner, but he had sufficient means to provide maintenance. He negatived the stand taken by respondent and ordered to pay maintenance at the rate of Rs. 75 per month from the date of the order. Questioning the correctness of the said order, both the respondent and the petitioner preferred revision petitions before the Sessions Judge. The petitioner herein filed Crl. R. P. No. 40 of 1978 and the respondent filed Cr. R. P. No. 25 of 1978. The learned II Addl. Sessions Judge to whom the revision petitions were made over for disposal heard the two revisions simultaneously and by a common judgment and order he allowed Rev. Petition No. 25/78 preferred by the respondent and dismissed the petition No. 40/78 preferred by the petitioner. Being aggrieved the wife has come in revision to this court. Mr. Thipperudrappa, learned Counsel appearing for the petitioner argued, the learned Sessions Judge was wrong in interfering with the order made by the Magistrate on reapprisal of the evidence and the order made by the sessions Judge, therefore, deserved to be set aside. He also submitted the amount of maintenance as awarded by the Magistrate was grossly inadequate and taking into consideration the rise of cost, at least minimum Rs. 150 per month was necessary for bare maintenance of the wife and the same deserved to be awarded. As against that, Mr. B. V. Deshpande, learned counsel appearing for the respondent argued, though ordinarily the revisional court will be slow to interfere with the order made by the Magistrate, but if the appreciation of the evidence is perfunctory and capricious ,it is competent for the Sessions Judge to reapprise the evidence and the appreciation of the evidence by the magistrate being perfunctory, the Sessions judge had committed no error or illegality by reapprising the evidence and therefore the order passed by the sessions Judge did not call for any interference. He also argued, the revision was liable to fail on another ground, namely, that the petitioner had neither averred in her petition nor adduced any evidence worth the name to show that she was unable to maintain herself.

( 3 ) IN view of these contentions, the question that requires to be considered is whether the Sessions Judge had committed an error by reapprising the evidence and reversing the findings of the Trial Magistrate.

( 4 ) AS rightly pointed out by Mr. Deshpande even, a cursory glance is sufficient to show that the learned magistrate recorded no definite finding about the ill-treatment as alleged by the petitioner. He also did not record any

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