SYED AKBAR ALI Vs. SESSION JUDGE

JUDGEMENT

(1.) This petition under Section 482 Cr. P.C. is directed against the orders dated 20.3.1980 and 30.10.1981 recorded by the Munsif Magistrate, 1st Class, Sambhal and the Sessions Judge, Moradabad respectively awarding maintenance of Rs. 100/- p.m. under Section 125 of Cr. P.C.

(2.) Admittedly, the petitioner, namely, Syed Akbar Ali was married to Smt. Rashida Khatoon some wherein 1975. There were some differences, and according to the wife, she was also divorced by the husband. This fact of divorce was denied by the husband and there have been findings against him in the judgments of the Courts below. Ultimately, after considering the entire materials on record, the learned Magistrate has passed an order of maintenance at the rate of Rs. 100/- p.m. and the same was confirmed by the Sessions Judge in the revision.

(3.) Before me the learned Counsel for the petitioner has urged that no finding was recorded by the learned Magistrate and the learned Sessions Judge about the earning capacity of the wife. It is true that under Section 125 of the Code of Criminal Procedure, it is a primary duty of husband to maintain the wife unable to maintain herself but at the same time there is no presumption that every wife should be able to earn and maintain herself. Unless the petitioner or the other party had raised this plea before the Magistrate, there could be no issue about the earning capacity of the wife nor there could be any finding which will lead Courts to consider this position in a petition of the present nature. The amount of Rs. 100/- p.m. is a bare minimum for sustenance to keep the body and soul together.