Mr. R. Ravindra, the petitioner, is aggrieved by the order, dated 12.02.2018, passed by the III Addl. Principal Judge, Family Court, Bengaluru, whereby the learned Family Court has allowed an application filed by Mrs. N. Anitha, an application also filed on behalf of the minor child, Master Kaschith Reddy, under Section 125 of Cr.P.C., and has directed the petitioner to pay a sum of Rs.6,000/- per month to the respondent No.1, and Rs.4,000/- per month to the respondent No.2, and also to bear 75% of the educational expenses of respondent No.2.

2. Briefly the facts of the case are that on 24.04.2011, the petitioner and the respondent No.1 were married in accordance with the Hindu rites and customs. On 17.07.2012, they were blessed with a son, Master Kaschith Reddy. According to the petitioner, on 06.11.2014, without any rhyme or reason, the respondent No.1 left the matrimonial home, and took the child with her. Subsequently, unable to maintain herself, and her child, the respondent No.1 filed an application under Section 125 of Cr.P.C. After hearing both the parties, by the impugned order, the learned Family Court has granted the maintenance, as aforementioned. Hence this petition before this Court.

3. The learned counsel for the petitioner, Mr. Raghu Prasad B.S., has vehemently raised the following contentions: firstly, the respondent No.1 happens to be a M.Com. graduate who was working, both prior to and subsequent to the marriage. Thus, she is capable of earning a living by herself.

Secondly, Section 125 of Cr.P.C. clearly stipulates that if any person has sufficient means, but neglects or refuses to maintain “his wife, unable to maintain herself”, then the wife is entitled to receive a maintenance from her husband. According to the learned counsel, the words “unable to maintain herself” should be interpreted to mean “incapable of earning, or destitute, or physically so disabled as to be unable to earn a living.” According to the learned counsel, since the respondent No.1 happens to be a M.Com. graduate, since she has already worked, both prior and subsequent to her marriage, she is certainly “capable of maintaining” herself. Therefore, she is disentitled from claiming any maintenance from the petitioner. In order to buttress this plea, the learned counsel has relied on the case of Dr. E. Shanthi v. Dr. H.K. Vasudev, ILR 2005 Kar. 4981.

Lastly, if both the parents are employed, the responsibility of having to maintain, and to look after the child, should equally be borne by both the parents. Therefore, the petitioner cannot be saddled with the responsibility of having to pay a maintenance of Rs.4,000/- per month to the child, and to pay his educational expenses. In order to buttress this plea, the learned counsel has relied on the case of Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398. Therefore, the impugned order deserves to be set aside by this Court.

4. On the other hand, Mr. M.V. Chandrashekara Reddy, the learned counsel for the respondents, submits that incapacity, or inability to maintain herself, can be caused by various factors. Merely because a person may be educated, does not necessarily imply that the person has “the capacity to be employed.” Secondly, according to the petitioner himself, the respondent No.1 had undertaken M.Com. degree through distance education with the Karnataka State Open University (‘KSOU’ for short), in the year 2011. Till today, she has not been able to complete her M.Com. degree. Therefore, even at best, she is merely a B.Com. degree holder. Therefore, the contention raised by the learned counsel that the respondent No.1 happens to be an M.Com. graduate, is factually incorrect.

Thirdly, the case of Dr. E. Shanthi (supra) is distinguishable on the factual matrix of the case itself. Therefore, the said case does not buttress the petitioner’s case.

Lastly, in the present case both the parents are not employed. As stated by the respondent No.1, she continues to be unemployed. Therefore, s