The expression "unable to maintain herself" in section 125 of the Code of Criminal Procedure does not mean that the wife must be physically unable to earn. It means that she has no other source or means of maintenance.

Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE - INTERPRETATION - EXPRESSION "UNABLE TO MAINTAIN HERSELF" - SCOPE AND MEANING - MAINTENANCE ALLOWANCE - WIFE'S ABILITY TO EARN - RELEVANCE - SECOND MARRIAGE OF HUSBAND - EVIDENCE - ADMISSIBILITY AND EVALUATION.
Fact of the Case:

The petitioner-wife filed an application under section 125 of the Code of Criminal Procedure claiming maintenance allowance from her husband, alleging ill-treatment, neglect, and refusal to maintain her. The husband denied the allegations and claimed that the wife had remarried. The Judicial Magistrate granted maintenance allowance to the wife, but the Additional Sessions Judge set aside the order on revision, holding that the wife had failed to prove her inability to maintain herself and that the evidence of second marriage was not reliable.
Finding of the Court:

The High Court held that the expression "unable to maintain herself" in section 125 of the Code of Criminal Procedure does not mean that the wife must be physically unable to earn. It means that she has no other source or means of maintenance. The Court also held that the Additional Sessions Judge had exceeded his jurisdiction in re-appreciating the evidence and interfering with the findings of fact recorded by the trial court.
Issues: 1. Whether the expression "unable to maintain herself" in section 125 of the Code of Criminal Procedure means that the wife must be physically unable to earn? 2. Whether the Additional Sessions Judge had jurisdiction to re-appreciate the evidence and interfere with the findings of fact recorded by the trial court?
Ratio Decidendi: 1. The expression "unable to maintain herself" in section 125 of the Code of Criminal Procedure does not mean that the wife must be physically unable to earn. It means that she has no other source or means of maintenance. 2. The Additional Sessions Judge had exceeded his jurisdiction in re-appreciating the evidence and interfering with the findings of fact recorded by the trial court.
Final Decision: The High Court allowed the revision petition, holding that the application filed by the petitioner-wife under section 125 of the Code of Criminal Procedure was maintainable. The matter was remitted back to the Additional Sessions Judge for deciding the question as to the quantum of maintenance allowance in accordance with law.

JUDGMENT - C.S. DHARMADHIKARI, J.:---The petitioner-wife filed an application under section 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate, First Class, Jaisingpur, claiming maintenance allowance at the rate of Rs. 300/- per month from the respondent No. 1, Sukumar A. Patil, her husband. It is an admitted position that the petitioner is the legally married wife of the respondent-Sukumar and their marriage took place as per Hindu ritse on 24th May, 1967. According to the petitioner-wife after the marriage they resided together for a period of two years. Thereafter there were frequent quarrels between the husband and wife and ultimately the respondent-husband drove her out of the house and has forsaken her. In her application she had also made allegations about the ill-treatment meted out to her by her husband. It is also her case that the respondent-husband has remarried with one Rajamti daughter of Jingonda Patil and the said Rajmati is residing with him at Jaisingpur. It was further alleged by her that a daughter was born to the respondent-husband from Rajmati and, therefore, on this ground also she is entitled to claim maintenance allowance under section 125 of the Code of Criminal Procedure. She further alleged that though respondent-husband is a man with sufficient means he has neglected and refused to maintain her. She also stated that she has no source of income and, therefore, she is unable to maintain herself.

2. In the written statement respondent-husband denied the allegations made by the petitioner-wife. The respondent-husband denied the fact that he had ever ill-treated his wife or has driven her out of the house. He further denied the allegation about the re-marriage with Rajmati. He also stated that it is not possible for him to pay an amount of Rs. 300/- per month as maintenance allowance to the petitioner-wife. Thus in substance the respondent-husband denied all the allegations made in the application.

3. In support of her case the petitioner-wife examined herself, and her brother Appasaheb and Dr. Bhirdi. She also produced documentary evidence in support of her case, namely an entry from the birth register maintained by the Municipal Council of Jaisingpur about the birth of female child to Rajmati and an extract from the Electoral Roll as well as 7 x 12 extract relating to the landed property of the respondent-husband.

4. On the other hand the respondent-husband examined himself. After appreciating all the evidence on record both oral and documentary, the learned Judicial Magistrate, First Class, Jaisingpur, recorded a finding that the petitioner-wife has proved that the opponent husband has neglected and refused to maintain her. He further found that respondent-husband has sufficient means to maintain his wife. The learned Magistrate further came to the conclusion that the petitioner-wife has also established the alleged second marriage. In view of these findings the learned Magistrate passed an order granting Rs. 125/- per month as maintenance allowance to the petitioner-wife from the date of the application.

5. Being aggrieved by this order passed by the Judicial Magistrate, First Class, Jaisingpur, both the parties filed revision petitions before the Sessions Court at Kolhapur. The opponent-husband challenged the order on the ground that the findings recorded by the learned Judicial Magistrate, First Class, were vitiated by errors apparent on the face of record and the petitioner-wife had not made out any case for grant of maintenance allowance. The revision petition filed by him was registered as Criminal Revision Application No. 6 of 1979. The petitioner-wife also filed revision petition claiming enhancement of the amount of maintenance allowance. Her revision petition was registered as Criminal Revision Application No. 13 of 1979. As both these revision petitions were filed against one and the same order they were heard together by the Additional Sessions Judge. The Additional

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Judicial Analysis