The wife's inability to maintain herself is an essential ingredient of a maintenance application under Section 125 of the Code of Criminal Procedure.

JUDGMENT - S.W. PURANIK, J.:---This revision application by the husband is filed against the order of Judicial Magistrate, First Class, First Court, Nagpur dated 29-11-1980 in Miscellaneous Criminal Application No. 504/79 whereby he had directed the applicant husband to pay a maintenance of Rs. 100 to non-applicant No. 1---wife per month.

2. This criminal revision application challenges the said order of maintenance on two grounds. First that the non-applicant No. 1, wife in her application under section 125 of Criminal Procedure Code has nowhere pleaded that she is unable to maintain herself. According to the petitioner here, unless the said averment is specifically made in the application, the trial Court should not consider her application for maintenance. Secondly the applicant also contends that apart form the want of pleading to that effect the applicant wife has not deposed in her evidence about her inability to maintain herself. Shri M.T. Joshi, the learned Counsel for the applicant, therefore, contended that whatever rights the wife Chandrakanta may have, she certainly cannot fulfil the ingredients of section 125 Criminal Procedure Code to claim any maintenance.

3. Shri M.S. Gupta, the learned Counsel appearing for the non-applicant No. 1 Chandrakanta, contended that the very fact that she had moved the application under section 125, Criminal Procedure Code shows patently that she was unable to maintain herself and was required to file the said application. He, therefore, submits that such specific pleading is not necessary. As regards the want of proof in the evidence in respect of the wifes inability to maintain herself or that she has no source of income, Shri Gupta submits that in the written statement, the husband has denied the fact that she is not earning and in fact he has suggested that she is a diploma holder in tailoring and she used to do some business and earned her livelihood before marriage. According to Shri Gupta it was for the husband to show that the applicant was earning rather than expecting a negative evidence on behalf of the wife that she was not having any income.

4. From the perusal of the application, it is apparent that it is very brief to sketchy. From the perusal of application under section 125 in para 1, it is seen that the wife Chandrakanta states that she was married on 22-3-1978 with Marotrao---The present applicant, that she was residing with him and that she gave birth to a son on 22-3-1979 and shortly thereafter i.e. on 30-4-1979 she was brought to her parents house by the husband. She further alleges that the husband has performed second marriage with one Indira on 12-11-1979. Thereafter she wanted to join her husband but the husband refused to allow her entry in the house. In the next paragraph she only states that the husband is having sufficient means and is getting a salary of Rs. 400 per month, but he refuses to maintain the wife and her minor son. In the third and the last paragraph, she says that it is, therefore, necessary that the husband be directed to pay Rs. 200 per month for the maintenance of herself and her son. It is thus clear that she has nowhere pleaded in her application that she is unable to maintain herself. On the perusal of evidence also it is seen that she has not made any statement about her earning or non-earning and nor has she stated that at present she has no occupation or no source of earning.

5. It appears that during the evidence, several factors emerged before the Court, particularly regarding the dispute between the husband and wife, the second marriage of the husband to Indira and that the wife was holding a diploma in tailoring prior to her marriage with the present petitioner and that for about three months she had earned out of tailoring some small amounts. The learned trial Court after recording evidence came to the conclusion that even though there is no specific pleading regarding inability to maintain herself, the evidence is sufficient to

Click Here to Read the rest of this document