This RPFC is filed U/s 19 of the Family Courts Act against the order dated 09.01.2008 passed in C. Mis. No. 261/2006 on the file of the Judge, Family Court, Mysore, dismissing the petition filed U/s 125 of Cr.P.C. seeking for maintenance Whether the expression ‘unable to maintain herself ’ contained in Section 125(1)(a) of the Cr.P.C. can be equated to the expression ‘capable of earning’ and therefore, in a case where the wife is a holder of a post – graduation degree cannot be said that she is capable of earning and as such, she is not entitled for maintenance. This question has cropped up for an answer in this revision petition filed under Section 19(4) of the Family Courts Act, by the wife calling in question the dismissal of her petition for maintenance, by the trial Court.

2. The facts are not in dispute in as much as the petitioner was married to respondent on 17.08.2005 and thereafterwards, petitioner was not looked after by her husband as was expected of her husband and it is the case of the petitioner that she was left in her parents’ house by her husband and he did not take her to his house and finally the petitioner had to issue a legal notice and though she expressed her willingness to join her husband, the respondent refused to take her and even refused to take her before the conciliation proceedings. Putting all these facts before the trial Court in her petition under Section 125 Cr.P.C., the wife sought maintenance at Rs.7,000/- per month on the footing that her husband is a lecture earning Rs.20,000/- per month and also owns a house.

3. The respondent-husband denied all the allegations made by the wife against him and it was his case that the behaviour of the petitioner was not normal and she herself refused to join the respondent. It is also his case that the petitioner was working as an officer in SBI credit card, earning Rs.6,000/- per month, gave up her job before filing the maintenance petition and it is his further case that his wife being a MBA graduate and also pursuing higher education in Marketing Management, is capable of earning more than Rs.20,000/- per month and deliberately she is not going for work and therefore, the maintenance petition be dismissed.

4. The learned Judge of the Family Court after considering the case of the parties and raising relevant points for consideration and on an appreciation of the evidence placed by the parties, ultimately took the view that the element of ‘ unable to maintain herself’ is very much absent in the instant case and therefore, her petition for maintenance deserves to be dismissed and accordingly, the trial Court dismissed the maintenance petition driving the wife to this Court.

5. The learned Counsel for the petitioner argued that the entire approach of the trial Court was erroneous and the learned Judge did not properly construe the expression ‘ unable to maintain herself and merely because the petitioner has the potential to earn, that itself cannot be taken as a circumstance to hold that the petitioner is able to maintain herself. The trial Court further erred in observing that being an MBA graduate and capable of earning Rs.5,000/- per month as deposed to by the petitioner in her evidence, and the inference that said evidence therefore takes the case out of the purview of Section 125(1)(a), cannot be sustained in law. Apart from this, the further submission made is that the learned Judge of the trial Court was also wrong in making an observation touching upon the human relation aspects and the said observation at para 14 of the impugned order is also uncalled for.

6. In support of his submission concerning interpretation of expression ‘unable to maintain herself’, learned Counsel for the petitioner placed reliance on the decision of the Bombay High Court in the case of Vimal Vs. Sukumar {CDJ 1980 BHC 118} to contend that the expression ‘unable to maintain’ only connotes that wife has no other means or source to maintain herself and it had not