The burden is on the husband to prove that the wife is able to maintain herself as a defense in a maintenance case under Section 125 of the Code of Criminal Procedure 1973.

Desai, J. :- These two revision petitions are directed against the order dated February 12, 1979, passed by the Judicial Magistrate First Class, III Court, Belgaum, in Cr. Misc. Case No. 91 of 1979 on his file under Section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the 'new Code'). The Code of Criminal Procedure 1898 will be hereinafter referred to as the 'old Code'.

2. The undisputed facts are that Malan the petitioner in Cr. R.P. 131/79 and respondent in Cr. R.P. No. 409/79 is the wife of Babu Rao, the respondent in Cr. R.P. No. 131/79 and the petitioner in Cr. R.P. No. 409/79. These parties will be hereinafter referred to as the 'wife' and 'husband'.

3. The wife filed an application under Section 125 of the new Code praying that she is entitled to a monthly maintenance of Rs. 500 as her husband has contracted marriage with another woman called Janabai and has neglected and refused to maintain her. She also alleged that her husband is the proprietor of the business run under the name and style as "Vishwanath Metal Mart" at Ganapathgalli, Belgaum and has a monthly income of Rs. 3,000. She has stated that she has studied up to S.S.L.C. According to her, she has been living with her parents at Belgaum since about two years prior to the filing of the petition.

4. The husband resisted the petition by contending inter alia, that as his wife did not bear children he married Janabai with her consent; that as the wife started quarrelling with him and his second wife he has left his parental house and is residing separately with his second wife; that the wife was residing with his parents till recently and a few days prior to the institution of this case she went to her parents house; that himself and his parents have not neglected to maintain her; that the allegations in her petition that the yearly turnover of his business is in lakhs is not true; that it is false to say that his income is not less that Rs. 3,000 per month; that he belongs to a respectable family of Maratha community and that looking to his income and the amount he needs for the maintenance of himself, his second wife and his children he will be able to pay a monthly maintenance of Rs. 75 to the wife.

5. The wife examined herself and three witnesses and produced Ex. P.1. in support of her case. The husband examined himself and produced Exs. D-1 and D-2.

6. On the said material, the learned Magistrate held that the husband who has sufficient means has neglected or refused to maintain the wife; that the wife is unable to maintain herself and awarded maintenance at the rate of Rs. 250 per month from the date of petition to the wife. Being aggrieved by the said order, the wife has preferred Cr. R.P. No. 131/79 for enhancement of the rate of maintenance and the husband has preferred Cr. R.P. No. 409/79 questioning the correctness and legality of the said order. The husband had filed Cr. R.P. No. 16/79 in the Court of the Sessions Judge, Belgaum, against the said order and the same has been transferred to this court for disposal along with Cr. R.P. No. 131/79 and after transfer, the said revision petition has been numbered as Cr. R.P. No. 409/79 on the file of this Court.

7. When the said petitions came up for hearing before our learned Brother Patil, J. it was contended on behalf of the husband that as the wife did not aver in her petition that she was unable to maintain herself and did not adduce any evidence to that effect, the order of maintenance passed by the learned Magistrate was without jurisdiction. On the other hand, it was contended on behalf of the wife that it is not for the wife claiming maintenance under Section 125, Cr. P.C. to make such an averment in the petition but, it is the duty of the learned Magistrate inquiring into the petition to record a finding that the wife is unable to maintain herself. The learned single Judge found that there is some divergence of opinion as expressed by this court in (a) Zubeda Bi v. Abdul