The entitlement to maintenance under Section 125 is contingent upon the applicant proving inability to maintain herself, which was not established.

ORAL JUDGMENT:

1. Mr. Manoj Sable, learned Advocate appears for respondent -sole and hence the office objection does not survive.

2. Admit. Heard finally with the consent of learned counsel appearing for respective parties.

3. This Revision is filed by the applicant-wife challenging the order dated 6th April,2017 passed by the learned Family Court, Nagpur in Petition No. E-524/2012 dismissing the application filed by the applicant-wife for maintenance u/s 125 of the Code of Criminal Procedure .

4. It is the case of the applicant that marriage between the applicant and respondent herein, was solemnized on 23rd December, 1971 as per the Buddhist rites and customs at Gaddigodam, Nagpur. Out of the wedlock they had three children. The respondent was doing a Government job, whereas the applicant-wife was a housewife. It is the case of the applicant that she came to know that the respondent had an extra marital affair with one lady by name Kiran. When the applicant questioned him, the respondent beat and ousted the applicant from the house. In the year 1988 the respondent quarelled with the applicant and threw her out of the house with her son. The respondent, however, kept both their daughters with him. According to the applicant, she is living at the mercy of her relatives. In the meantime, her second daughter-Parul expired, however, the respondent did not inform her about the sad death. According to the applicant, the respondent is drawing a salary of more than Rs.1 lakh per month. The applicant had filed the application u/s 125 Cr.P.C.

5. The respondent raised a preliminary objection on the point of maintainability of the petition before the Family Court, Nagpur. It was contended that the applicant was having an illicit relationship with one Kenedy Johnson @ Pinku and also one Dharamver when they were staying at New Delhi. After solemnization of marriage, they shifted to New Delhi in the year 1981 itself. It is the case of the respondent that the applicant started neglecting the respondent and their two daughters. The respondent filed a petition for divorce against the applicant bearing No. HMA-598/1993 in Sessions Court at Delhi on 27.07.1993. So also, the applicant had filed a petition u/s 125 Cr.P.C. in the Court at Delhi. It is the case of the respondent that on 6.11.1993, the petitioner left matrimonial home with her son and on 11.3.1994 both filed a joint application for dissolution of marriage by a decree of divorce by mutual consent u/s 13-B of the Hindu Marriage Act bearing HMA No.598/1993. They filed affidavits duly sworn in before the Oath Commissioner which were verified and signed by both of them. As per the consent terms, it was decided that the applicant would keep the custody of her son and would maintain him out of her own earnings. The applicant had agreed not to claim the maintenance from respondent and to withdraw her maintenance petition u/s 125 Cr.P.C. The applicant also accepted streedhan articles. According to the respondent, the applicant then remained absent and therefore on 18.11.1995 an exparte divorce decree was passed in HMA No.598/1993 in favour of the respondent. Thus, according to the respondent, since March 1992, the applicant has been living separately from him and after a gap of 20-years she has filed an application u/s 125 Cr.P.C., which is not maintainable.

6. The learned Judge of the Family Court has observed that from the year 1988 till the date of alleged desertion i.e. 2012, the applicant has not filed any petition for maintenance against the respondent claiming that he has deserted her for a lady by name Kiran; so also the petition u/s 125 Cr.P.C. filed by the applicant before the Delhi Court has been dismissed in default. It was observed that it