K. Harilal, J.

1. The revision petitioner is the respondent in MC No. 237 of 2010 on the files of the Family Court, Thrissur. The petitioner is directed to pay maintenance allowance at the rate of Rs. 6,000/- per mensem to the respondent by the impugned order passed in the above MC. The legality of the entitlement of the maintenance allowance and the correctness of the quantum of amount determined by the Court below are under challenge in this revision petition. Heard the learned Counsel for the revision petitioner and the learned Counsel for the respondent.

2. The learned Counsel for the revision petitioner mainly point out that in the year 2010, when the Maintenance Case was filed, the respondent was actually employed and she was able enough to maintain herself and the same stands proved by Exts. A6 to A11. Therefore, she was not entitled to get maintenance allowance on an application which was filed at the time when she was employed as a Teacher. The learned Counsel further clarifies that even if she has lost the said job during the pendency of the proceedings, she is not entitled to get the maintenance allowance on the application which was filed at the time when she was employed as she was able enough to maintain herself, at that time.

3. Per contra, the learned Counsel for the respondent submits that the respondent left the company of the petitioner on 24/12/1998. So, even if she was subsequently employed and got temporary income, the said income which she had obtained, after the departure from the company of the petitioner, cannot be taken into account within the fold of the phrase 'unable to maintain herself as contemplated under Section 125 of the CrPC, in view of the decision of the Supreme Court in Chaturbhuj v. Sita Bai, 2008 KHC 4381 : 2008 (1) KLT 41 : (2008) 2 SCC 316 : AIR 2008 SC 530 : 2008 CriLJ 727 : (2008) 1 SCC (Cri) 356 : 2008 (105) Cut LT 729 : 2008 (2) Guj LR 1159. The short question that arises for consideration is, whether the Court below is justified in granting maintenance allowance to the respondent on an application filed at the time when she was temporarily employed and getting income to maintain herself.

4. Going by Exts. A6 to A11, it is seen that the respondent was temporarily employed as a Teacher, at the time when she filed the MC and subsequently she had lost the said job in March, 2011. It follows that at the time when the impugned order was passed, admittedly, she had no employment as proved by Exts. A6 to A11. In that context, the Court below passed the order directing the revision petitioner to pay maintenance allowance without considering the financial capability of the respondent at the time when the application was filed.

5. According to Section 125(1) of the CrPC, the Magistrate can pass an order directing the husband to make a monthly maintenance for his wife or child upon proof of such neglect or refusal to pay maintenance allowance. Thus, the proof of neglect or refusal is a condition precedent to grant maintenance. So the living condition of the wife or child on an appraisal of evidence determines the entitlement of maintenance allowance. Therefore, even if the wife was temporarily employed at the time of filing the application, and the said job had already been lost, before the appraisal of evidence after trial, maintenance cannot be denied on the sole ground that she was temporarily employed at the time of filing the application. As rightly submitted by the learned Counsel for the revision petitioner, the phrase 'unable to maintain herself was interpreted by the Apex Court in Chaturbhuj v. Sita Bai, 2008 KHC 4381 : 2008 (1) KLT 41 : (2008) 2 SCC 316 : AIR 2008 SC 530 : 2008 CriLJ 727 : (2008) 1 SCC (Cri) 356 : 2008 (105) Cut LT 729 : 2008 (2) Guj LR 1159. In this decision, the Supreme Court held that the phrase "unable to maintain herself" would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts m