A husband's obligation to maintain his wife is a personal obligation attaching from the moment of marriage and is independent of possession of property. The expression 'means' in Section 125 Cr. P.C. includes the husband's ability to earn.

1. - This is a miscellaneous petition under Section 125 Cr. P.C. against the judgment dated 18-10-1986, passed by the Additional Sessions Judge No. 2, Kota, where he confirmed the order passed by the Addl. Chief Judicial Magistrate No. 2, Kota dated 23rd August, 1986 rejecting the application of the non-applicant under Section 125 Cr. P.C.

2. Mr. Bhargava learned Counsel for the petitioner and Mr. Gupta for the non-petitioner prayed that instead of deciding the case for grant of interim maintenance the application for reviewing the entire case may be decided as the points raised are very short.

3. I have given the thoughtful consideration to the rival contentions of the learned Counsel for the parties and gone through the judgment of the lower courts. There is no doubt and it is common ground that the husband and wife are living separately and litigation is going on between them as admitted by Mr. Gupta on the ground of cruelty of the wife and the same is also pending. In view of the above bedrock the consideration of application for maintenance is well founded. The only question is whether the husband has got sufficient means to pay maintenance as contemplated by Section 125 Cr. P.C. Mr. Gupta pointed out that the finding of the lower courts is that the husband is a student of M.Com. and except for a short interval period when he was employed in a Bank, he is out of employment Mr. Bhargava apprehending the above submissions of Mr. Gupta has come out with an important dimension of the Branch of law by contending that the Manu's mandate in this respect is that beg borrow, or steal, but you must maintain your wife. In this regard he has pointed out the judgment of the Orissa High Court of Hon'ble Justice R.C. Patnaik reported in 1982 Cr. L.J. 485 in which this principle has been affirmed and confirmed. Para 6 of the above decision reads as under:

"Sri Bidhaya Patnaik, learned Counsel appearing for the petitioner, submitted that the learned Magistrate did not keep the law in view while disposing of the application of the petitioner and drew my attention to the case of Sri Raja Bommadevara Raja Lakshmi Dave Amma Gari v. Raja B. Naranna Naidu Bahadur Zamindar Garu AIR 1925 Mad 757 where their Lordships held:

"The obligation of a husband to maintain his wife is one arising out of the status of marriage. It is a liability created by the Hindu Law, in respect of the jural relation of a Hindu family and to Article 554 of Mulla's Hindu Law. A wife is entitled to be maintained by her husband, whether he possesses property or not. Manu as cited in Mitakshara, has enjoined: The aged parents, a virtuous wife and an infant child must be maintained even by doing a hundreds misdeeds."

"The obligation to support the wife is a personal obligation attaching from the moment of marriage. It is independent of possession of property. (Mayne's Hindu Law, 11th Edition 818)."

4. The learned Judge has given new dimension to the phraseology used in Section 125 Cr. P.C. by holding that the expression 'means' does not signify only visible means such us real property or definite employment. According to him if a man is healthy and able-bodied he must be held to be possessed of means to support his wife and child etc. Relying upon the earlier judgments of AIR 1925 Mad. 757 and 1968 Cr. LJ 1153 (Delhi). Out it was held that even if the husband may be insolvent or a professional beggar or a minor or a monk, but he must support his wife so long as he is able bodied and can make out his livelihood.

5. In Chander Prakash Bodu Raj. v. Shila Rani Chander Prakash 1963 Cr. LJ. 1153 the Hon'ble Chief Justice I.D. Dua as he then was affirmed the same proposition and held that an able bodied young man has to be presumed to be capable of earning sufficient money so as to be reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn to be able to maintain them according to the family standard.

6. The learned Judge in t