MOHAMMAD SHAMIM Vs. NASEEM JAHAN BEGUM

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure, 1973. It arises from a proceeding initiated by the opposite party wife under Section 125 of the Code. The learned Magistrate directed the applicant-husband to pay Rs. 60/- per month by way of maintenance to his wife the opposite party. On revision, the learned Sessions Judge has confirmed that order.

(2.) Mr. H.S. Joshi, learned Counsel for the husband who is the applicant in this Court, urged that both the courts below had failed to take into account the unrebutted evidence that the wife was an expert in biri making and was earning money sufficient to maintain not only herself but her mother too.

(3.) Now, under Section 125 of the Code, a wife who applied for maintenance must be one "unable to maintain herself". In view of the husband's allegations that the wife was an expert in making biris and that was the reason why her mother did not allow her to come back to him, it was incumbent on the wife to have rebutted that allegation and to have proved that she was unable to maintain herself; and learned Magistrate could not have ordered the husband to pay maintenance to her unless he found it as a fact that the wife was unable to maintain herself. The learned Magistrate considered only the income of the husband and the question whether he had divorced her as alleged by her; although in the course of the consideration of the evidence, he did remark that the evidence of the witnesses on the question whether the wife was earning money by making biris was not believable because in the cross-examination the witnesses expressed ignorance of the Biri factory where she worked and stated that she had heard that she made biris. The reason given by the learned Magistrate for disbelieving the witnesses is that it was not possible to believe that a wife may allege that she had been divorced, without having been divorced by the husband and then leave the husband's place for ever, and although she is young she may not marry again. The reason given is wholly conjectural. A wife who has been divorced by her husband is bound to live away from him and if her only relative happens to be her mother then it is natural that she should go and live with the mother and if the mother does not have sufficient means to maintain them both, there is nothing unusual in the wife making a living by doing some work which she knows. The husband stated on oath that the wife makes biris. The wife did not deny on oath that she knew biri making.