A wife is entitled to maintenance from her husband if she is unable to maintain herself and the husband has the capacity to maintain her.

( 1 ) HEARD Mr. Raj Singh, learned Counsel for the revisionist, Mr. Devendra Swarup, learned counsel for respondent No. 2 Laxmi Narain and the learned A. G. A. for the State respondent No. 1 at length and in detail.

( 2 ) PERUSED the impugned order passed by Vlth Addl. Sessions Judge, Aligarh in Criminal revision No. 723 of 1982 and the judgment and order passed by lvth Judicial Magistrate, aligarh in Suit No. 252 of 1982 Under Section 125 Cr. P. C. The learned Judicial Magistrate allowed maintenance for the applicant, Dropa Devi and her minor son at the rate of Rs. 150/- per month. The revisionist, Dropa Devi was allowed maintenance on the ground that she is unable to maintain herself. The learned Addl. Sessions Judge set aside the order of the Judicial Magistrate holding that the evidence of the petitioner lady and her father was not corroborated by the maintenance application filed in the Court Page Nos. 3 and 4 of the impugned judgment. The learned Addl. Sessions Judge has given reasons how the evidence of the petitioner Dropa Devi and her father differed from the facts noted in the maintenance-application. Simply on this ground he has held that the evidence of the petitioner and her father is not acceptable. On the point of income of the husband the learned Addl. Sessions Judge has observed that the evidence on the point of income is not very sound and acceptable.

( 3 ) THE provision of Section 125 Cr. P. C. requires only three things : (1) that the husband has capacity to maintain, (2) that he neglects or refuses to maintain his wife, and (3) that the wife has no means to maintain herself. The allegation petition claiming maintenance has given grounds for compelling this petitioner to live separately and the grounds taken in the evidence of the petitioner lady has also good grounds compelling her to live separately. If Sessions Judge has found any difference in the grounds compelling the lady to live separately then also the point remains that she is compelled to live separately from the husband. The learned Addl. Sessions judge has noted certain statements to disbelieve the witness which are not necessary to be noted here but the total effect of the statement is to support the grounds for her living separately from her husband, so the admitted position is that the claimant lady is living separately with her father being compelled by husband not to maintain her and she is ill treated on several grounds. This nature of contradiction is not worth consideration for the Court when the claim is being considered. She has several grievances against the husband, the opposite party No. 2 Laxmi narain has nowhere claimed that the wife is not ready to live with him. His simple ground is that he has not sufficient means because he runs only a khocha and the lady is without any reason living separately from him. Learned Counsel has taken shelter of 2nd proviso of Subsections 3 and 4 of Section 125 Cr. P. C. The record speaks that no such ground was taken by the opposite party No. 2 that the life is rudy to maintain her on the condition that she will live with him and she is refusing to live. Therefore this nature of argument is not at all available in this case.

( 4 ) THE admitted position is that the husband is running a "khocha". The claimants evidence is that her husband is earning Rs. 50-60 per day. The opposite party No. 2 has not given any estimate of his daily income but he has stated that he is earning Rs. 100-150 per month only. Now-a-days normally labourers are earning Rs. 40/-per day and their per month income comes atleast Rs. 1200/-, and the business men are earning more than the labourers. So at the present the O. P. 2 can be acceptable to be insufficient means, who has admitted to be running business of "khocha".

( 5 ) IT is apparent that the opposite party No. 2 is neglecting his wife without any reason and the claim of the revisionist lady is being defeated in this way. Since last l5 years she has got