K. Hema, J.

1. Can the court dismiss a petition for maintenance filed under section 125 of the Code of Criminal Procedure (the Code, for short), on the ground that a decree is passed against the wife, in a petition for restitution of conjugal rights?

2. The revision petitioners are the wife and minor son of the respondent herein. They filed petition before the Family Court, claiming maintenance from respondent, under section 125 of the code. The claim made by the wife was rejected, but maintenance was ordered in favour of the child at the rate of Rs.500/- per month. The challenge in this revision is only against rejection of maintenance to the wife. It is made clear at the time of hearing that the quantum of maintenance allowance ordered in favour of the child is not being challenged.

3. The parties were married in 1998 and the second petitioner was born in the wed-lock. The respondent is having sufficient means as he is engaged in stone-quarrying. He earns Rs.50,000/- per month out of his work. He allegedly neglected the wife and child and did not even meet any necessary expenses. She left the house of the husband along with her child because of the cruelty inflicted by her husband at his house when they were living together. The petitioner is unable to maintain herself and she claimed Rs.500/- per month as monthly maintenance from the respondent. The respondent filed a counter statement and denied all the allegations. His case is that the first petitioner is refusing to live with him, without any valid reason. He also disputed the sufficiency of means and also the alleged neglect.

4. The respondent filed a petition against the first petitioner before the same court, seeking restitution of conjugal rights. It was tried simultaneously with the maintenance case. In the said petition, the trial court found that the first petitioner is living separately from her husband, without any valid reason and hence, direct the first petitioner to resume conjugal relationship with the respondent. According to the Family Court, the said order is binding is on the parties and hence, there is no necessity to consider the question regarding the separate living of the parties in this petition again. The claim made by the wife for maintenance was rejected on the above ground. Is it correct, legal or proper?

5. To answer this question, an in-death reading of section 125 of the Code is essential. Section 125 reads as follows:

Section 125: Order for maintenance of wives, children and parents.-(1) if any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

© his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, of

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is Satisfied that the Husband of such minor female child, if married, is not possessed of sufficient means:

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Ma