1. This revision is under section 397 read with section 401, Criminal Procedure Code.

2. Applicant and non-applicants are wife and husband. By an order dated 15.2.1999 in MJC No. 187/1997 under section 125, Criminal Procedure Code the Judicial Magistrate First Class, Bhopal had passed an order in favour of applicant granting maintenance of Rs. 1,000/- per month to be paid by the non-applicant. Thereafter, the husband moved an application under section 127, Criminal Procedure Code for cancelling the order of maintenance before the Family Court which was registered as MJC No. 1178/2002. The Family Court by its order dated 10.5.2005 ordered that the wife Aneeta has sufficient means to maintain, hence the order of Judicial Magistrate was set at nought.

3. Against this the applicant Aneeta Joshi has come before this Court.

4. On perusal of the record, it appears that Aneeta had registered herself as an Advocate and had started practice in Bhopal Court since 1998. In 1999 on 15.2.1999 the Judicial Magistrate First Class, Bhopal passed an order of maintenance in her favour. When the husband Subhash moved an application under section 127, Criminal Procedure Code the Family Court held that Aneeta is a practicing Advocate and she must be earning sufficient money to maintain herself, therefore, the order of maintenance passed by the Judicial Magistrate First Class, Bhopal was set aside.

5. There is nothing on record of the Family Court in MJC No. 1178/ 2002 that she is earning sufficient money to maintain herself. The husband Subhash does not know how much money she earns. He says that he learnt from few Advocates that her monthly income is about 5 to 6 thousand. This is just hearsay evidence. No one has been examined in support of this contention. Aneeta does not admit this fact and says that she yet practices as a junior to some Advcoate and has no separate establishment. She further says that the distance between her house and his senior is quite long and she is not able to attend his senior's office regularly. She further says that in city like Bhopal she has not her own independent vehicle and hence as a routine she is dependant on her sister who drops her on her vehicle. The family Court has also not given any specific finding on her actual income or estimated income. What the Family Court says is since she has started practice it means that now she has sufficient means to maintain herself. The Court below has referred to one case of Durga Singh Lodhi v. Prembai and others [1990 JLJ 30]. In para 4 of the judgment it is said at page 309 as under:

"In our opinion, mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under section 125 (1), as even at the stage of enforcement of the order under section 125 (1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payment, it has to be held that he has so done for no sufficient cause."

6. Applying the analogy of this citation family Court in para 10 of the order says that though she may not have visible means or real estate but she is not entitled to maintenance allowance as she has started practicing as an Advocate and she is capable of maintaining herself by earning through profession. The reasoning is misconceived. The spirit under section 125 (1), Criminal Procedure Code is not like this what is stated in that section is "If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself...."

Here under this provision if the wife is unable to maintain herself she is entitled to have allowance from her husband. It is nowhere shown that she has sufficient means to maintain herself. There is no iota of evidence on record to substantiate this fact. Merely because she has started practice and has completed about 6 to 7 years as an Advocate, this