Criminal P. C., 1973-S. 125-inability to earn not pleaded by wife-she is also earning and possessed of agricultural land-husband even if Jiving with another woman not duty bound to maintain his wife.

       

        Non-applicant Tiji Kuwar made an application for grant of maintenance to her under Section 125 Cr. P. C. against her husband applicant Mehtar on 28-6-1978. The Judicial Magistrate dismissed the application vide his order dated 4-3-1982. Thereupon, non-applicant Tiji Kunwar filed a revision in the Court of Sessions. The Additional Sessions Judge vide his order dated 23-31984 allowed the revision and ordered applicant Mehtar to pay maintenance to non-applicant Tiji Kunwar with effect from the date of the application at the rate of Rs. 75/ - per month. It is being aggrieved by it that applicant Mehtar has filed the present revision in this Court.

       

        Held: It is true that in view of the fact that applicant Mehtar had started Li"Ving with another woman named Magambai, non-applicant Tiji Kunwar was entitled to Li"Ve separately and claim maintenance from him under section 125 Cr. P.C. in case she established that she was unable to maintain herself. But then it was no where stated by her in her application that she was unable to maintain herself. On the other hand what was stated by her was that she was maintaining herself by doing Banibhuti i. e. by doing work as a labourer. It is noteworthy that the parties were small cultivators and there was no reason to think. that the females in their family did not work as a labourer in the ordinary course of nature.

       

        Moreover, non-applicant Tiji Kunwar tried to suppress the fact that she was possessed of two and half acres of land on the date of making of the application. The question whether she had purchased the said land with her money or whether it was applicant Mehtar who had purchased it in her name was immaterial in the present proceedings. It was clear from the evidence of non-applicant Tiji Kunwar herself and that of her witness P. W. 2 Aghari that non-applicant Tiji Kunwar was cultivating the land and enjoying its usufruct all along. Thus, apart from whatever non-applicant Tiji Kunwar was earning by doing work as a labourer the usufruct or income from two and half acres of land possessed by her was also available to her for maintaining herself. As against the said fact, from the state of evidence produced in the case it was apparent that applicant Mehtar possessed only about ten acres of land. It was also apparent that apart from maintaining himself and the second woman who had been Li"Ving with him he had also to maintain at least two children born as a result of his relationship with the said woman. In the circumstances, as against the means possessed by non-applicant Tiji Kunwar herself, those possessed by applicant Mehtar could not be regarded such that the applicant could be ordered to pay any maintenance to the non-applicant under section 125 Cr. P. C. Revision allowed.