1984 Supreme(MP) 266

K. K. Adhikari, J.
Umadevi v. Vishnu Mohan Shrivastava.
Misc. Cr. Case No. 1063 of 1983 (J); Decided on 27-4-1984

Headnote:Criminal P. C., 1973 -- S. 125 -- application for maintenance by wife -- omission to state Court about unability to earn by wife -- not fatal -- it is only a technical irregularity.

        This application for grant of maintenance was made by the applicant on various allegations on 17-10-1977. Perusel of this application shows that an averment regarding the fact that the applicant is unable to maintain herself has been specifically made in para- 13 thereof. It is not disputed before me that the applicant is legally married wife of the non-applicant and had borne children out of their wedlock. However, it has been stated in reply by the non-applicant to the said applicant for grant of maintenance that one of the sons is not borne out of their wedlock. However, this question for the present is not relevant. The trial Court, after appreciation the evidence on record, rejected the application for grant of maintenance on the ground that Umadevi (P. W. 1) has not stated that she is unable to maintain herself. It has already been seen above that there was specific pleading in this regard in the said application. On revision being filed against the said order the leaned First Addl. Sessions Judge Rewa, dismissed the revision also on the same ground.

        Held : The learned counsel appearing for the applicant submitted that rejection of the application on the ground that the applicant has not stated that she is unable to maintain hen elf, could not be made a ground rejection of the maintenance allowance. The learned counsel appearing for the respondent did not dispute the fact that in the application under Sec. 125 of the Code of Criminal Procedure, 1973, there is specific averment made by the applicant to that effect. It is also settled that mere non-mention of the fact that the wife is unable to maintain herself is a technical irregularity which cannot be made a ground for rejection of the grant of maintenance allowance. Under the circumstances, in my opinion, it is a fit case where the orders passed by the Courts below are required to be set-aside and the matter be remanded back for disposal in accordance with law, particularly in view of the fact that the Courts below have not recorded any finding as regard other pleadings including the income of the non-applicant. Application allowed.