MAROTRAO BABURAO CHAUDHARI Vs. CHANDRAKANTA

JUDGEMENT

(1.) This revision application by the husband is filed against the order of Judicial Magistrate, First Class, First Court, Nagpur dated 29-11-1980 in Miscellaneous Criminal Application No. 504/79 whereby he had directed the applicant husband to pay a maintenance of Rs. 100 to non-applicant No. 1---wife per month.

(2.) This criminal revision application challenges the said order of maintenance on two grounds. First that the non-applicant No. 1, wife in her application under section 125 of Criminal Procedure Code has nowhere pleaded that she is unable to maintain herself. According to the petitioner here, unless the said averment is specifically made in the application, the trial Court should not consider her application for maintenance. Secondly the applicant also contends that apart form the want of pleading to that effect the applicant wife has not deposed in her evidence about her inability to maintain herself. Shri M.T. Joshi, the learned Counsel for the applicant, therefore, contended that whatever rights the wife Chandrakanta may have, she certainly cannot fulfil the ingredients of section 125 Criminal Procedure Code to claim any maintenance.

(3.) Shri M.S. Gupta, the learned Counsel appearing for the non-applicant No. 1 Chandrakanta, contended that the very fact that she had moved the application under section 125, Criminal Procedure Code shows patently that she was unable to maintain herself and was required to file the said application. He, therefore, submits that such specific pleading is not necessary. As regards the want of proof in the evidence in respect of the wifes inability to maintain herself or that she has no source of income, Shri Gupta submits that in the written statement, the husband has denied the fact that she is not earning and in fact he has suggested that she is a diploma holder in tailoring and she used to do some business and earned her livelihood before marriage. According to Shri Gupta it was for the husband to show that the applicant was earning rather than expecting a negative evidence on behalf of the wife that she was not having any income.