1980 Supreme(MP) 269

Faizan Uddin. J.
Narbadabai v. Kartikram
Cr. Revn. No. 338 of 1979 (J): Decided on 11-9-1980.

Headnote:Criminal P. C, 1973-S. 125-maintenance petition under-tenability of -whether it is necessary to plead that applicant is not able to maintain applicant working as casual labourer-whether still entitle to claim maintenance.

       After recording evidence, the learned Magistrate negatived the defence and came to the conclusion that the non-applicant having means to maintain neglected the applicant and hence granted separate maintenance allowance to the applicant at the rate of Rs.90 per month from the date of his order. i.e. w.e.f. 29-5-1978. In revision, the learned Third Additional Sessions Judge set aside that order on the ground that the wife applicant neither in her application nor in her evidence pleaded and averred that she was unable to. maintain herself and as such the learned Additional Sessions Judge held that the application for maintenance allowance Was not tenable in law.

       In the aforesaid circumstances. therefore, the short question that arises for my consideration is whether the maintenance petition was lacking in respect of the pleadings and averments about inability of the petitioner to maintain herself.

       Held : There is no dispute that by virtue of clause (a) of sub-section (1) of section 125 of the Code, the husband is required to maintain his wife who is unable to maintain herself. In view of this, it becomes incumbent upon the wife to plead in her maintenance petition that she was unable to maintain herself and that her husband having sufficient means to maintain her had neglected to do so. I shall, therefore, proceed to examine and scrutinize the averments made in the maintenance petition to this effect and the evidence, if any, in support of such averment.

       On reading the contents of paras No.3, 4 and 5 of the maintenance petition, I find that the applicant had averred that she was turned out from the house by the applicant and that in the panahayar the non-applicant had refused to maintain her and finding herself quite helpless she took shelter with her parents and somehow or other she is sustaining herself by working as a labourer. The same facts were reiterated by the applicant in her evidence vide her deposition; (Para No. 10). These averments are clearly indicative of the fact that the applicant was unable to maintain herself. No other meaning could be assigned to the said averments except that she was unable to maintain herself. The provisions of section 125 (1) (a) do not lay down or prescribe any particular words or any form of pleadings or averments to convey that the wife-applicant was unable to maintain herself. Any form of averment or language used which clearly indicated that the wife was unable to maintain herself would be enough to satisfy the requirement of the said provision of law. That being so the learned Additional Sessions Judge was manifestly wrong in holding (hat the maintenance petition was not tenable because of the absence of pleading and evidence that the wife applicant was unable to maintain herself. The learned Additional Sessions Judge failed to consider the aforesaid aspects of the case and ignored the said averments and evidence while passing the impugned order which resulted into miscarriage of justice.

       It could not be said that because the applicant was a wage earner as a labourer and, therefore, she was able to maintain herself. The applicant was turned out by the non-applicant as found by the Courts below and, therefore, in order to prove that she was unable to maintain herself it would not be expected from her that she should allow herself to starve till such time the maintenance allowance was made available to her. After all, it would be necessary for her to keep her body and soul together and fight for survival.

       Besides, the casual earning of a labourer is not a secured of permanent earning so as to call it as a permanent Li"Velihood. In there circumstances, even if it is found that the applicant was working as casual labourer that by itself is no ground to hold that she was unable to maintain herself so as to disentitle her from claiming separate maintenance from her husband on the grounds recognized by law. Revision allowed.