A wife cannot invoke the Court's jurisdiction to grant maintenance under section 125 of the Criminal Procedure Code in the absence of any averment and proof relating to her inability to maintain herself.

JUDGMENT - SHARAD MANOHAR, J.:---The grievance made by Mr. Patel, the learned Advocate for the petitioner/husband in this petition, which arises out of the proceedings under section 125 of the Criminal Procedure Code is that the learned Additional Sessions Judge has taken the view of law diametrically opposed to the view taken by this Court to his knowledge.

After examination of the case, I find that the grievance of Mr. Patel is quite justified. That apart, the point on which the trial Court dismissed the wife's petition for maintenance is justified by three judgments of this Court, one of which was brought to the notice of both the courts below, as mentioned above. Since this is the legal position, the petition has got to be allowed.

2. The facts are very simple.

The respondent/wife filed an application against her husband, the present petitioner, on various grounds. It is un-necessary for me to set out all the grounds. The only fact which needs be stated here is that she did not make any averment in her application to the effect that she was unable to maintain herself. Not only this, but even in the evidence led by her there was not as much as a murmer on her part that she was unable to maintain herself. The trial Court was unable to accept the evidence of the wife in relation to her plea of neglect on the part of her husband to maintain her. But over and above that, he also found that the applicant/wife had abstained from not only making any averment of maintenance, but even from leading any evidence of her inability to maintain herself.

In these circumstances, the learned Magistrate dismissed her application for maintenance. However, he held that the child from marriage, respondent No. 2, was entitled to maintenance as a matter of right and hence, he passed an order of maintenance in her favour for Rs 50/- per month.

3. In this connection, it is to be noted that the learned Magistrate specifically relied upon the judgment of a learned Single Judge of this Court in the case of (Kewaldas Pandurang Awale v. Kunda Kewaldas Awale)1, 1982 Maharashtra Law Journal p. 167 wherein it has been held by this Court that when the wife making application under section 125 of the Cri.P.C. does not make any averment in her application about her inability to maintain herself and when she does not even depose to that effect in her evidence, the Court has no jurisdiction to grant any maintenance to her.

4. In the revision application filed against the said order by the wife, the learned Additional Sessions Judge has specifically referred to this fact that the above mentioned judgment of this Court was relied upon by the trial Court for coming to the conclusion that in the absence of any averment and proof relating to her inability to maintain herself, the wife was not entitled to invoke the Court's jurisdiction to grant maintenance to her.

But, for the reasons best known to himself, the learned Additional Sessions Judge decided to ignore or over-rule the said judgment and he proceeded to hold that the very fact that the wife had presented the application for maintenance itself meant that she was unable to maintain herself. The learned Judge has not examined the evidence to ascertain whether even in her evidence she was deposed to her inability to maintain herself. The learned Judge further took the view that the wife was admittedly living away from her husband, at her parent's place. He further found that there was no evidence relating to payment of maintenance to her by the husband. He further held that there was no evidence led by the husband to prove that the wife was able to maintain herself.

On this ground, he allowed the revision application, set aside the order of the trial Court and awarded maintenance to the respondent/wife at the rate of Rs. 100/- per month.

5. As stated at the outset, Mr. Patel for the petitioner/husband has rightly urged his grievance before this Court as regards the extremely inadvisable approach of the learned Addit

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