KEWALDAS PANDURANG AWALE Vs. KUNDA KEWALDAS AWALE

JUDGEMENT

(1.) This Revision Application under section 397 read with section 401 of the Criminal ! rocedure Code, 1973, by the husband challenging the order of the trial Court granting to the respondent wife a monthly separate maintenance of Rs. 150 per month, will have, very unfortunately to be allowed on the sole ground that neither in the whole application nor in the evidence of the applicant wife there is an allegation that she is unable to maintain herself. I have been taken carefully through the original application for maintenance filed by the wife as also through the evidence adduced on her side including her own testimony as also the written statement filed on the side and the evidence adduced on the husband's side. Not a word has been stated anywhere by the wife in her application for separate maintenance under section 125 of the Criminal Procedure Code, 1973 that she is unable to maintain herself. Naturally nothing in this respect has been said by the husband in his written reply. In the evidence also the wife does rot say a word about her being unable to maintain herself. The trial Court framed certain points for determination and recorded its findings thereon. But whether the applicant had proved or was otherwise unable to maintain herself was not one of the point which the learned trial Magistrate deemed ie necessary to frame for determination. Thus the unfortunate fact remains that in this otherwise good case for the wife, there was absolutely no allegation in her' application filed Under section 125 of the Criminal Procedure Code, that she was unable to maintain herself. Not a word was stated by herself in this respect or by anyone on her behalf and even the trial Court failed to bear in its mind that only a wife unable to maintain herself is entitled to claim maintenance from the husband under the provisions of section 125 of the Criminal Procedure Code.

(2.) Shri Nabir Abbas for the respondent-wife has tried to contend that in the original application for maintenance the occupation of the applicant-wife has been nentioned as "household". In the evidence the wife stated that her occupation was nil and this, according to Shri Nabir Abb: s, would be sufficient to show that she was unable to maintain herself. Sbri Nabir Abbas urges that after all it was a negative burden on her and it was for the applicant to positively allege and prove that the wife was earr ng her own living. It is difficult to accept this contention. A person who may be having no occupation at all, might still be able to earn his or her livelihood. It cannot be said that the burden lay on the husband to show that the wife able to earn her living, if the wife herself while filing an application under section 125 of the Criminal Procedure Code, 1973, failed to allege in her application that she was unable to maintain herself. It was absolutely essential for the wife to make this allegation and then to prove it and then it was for the learned trial Magistrate to have enquired into the question and to have recorded a finding that the wife was unable to maintain herself, before the wife could claim or the trial Court could grant any separate maintenance to the wife from the husband under section 1?.S of the Criminal Procedure Code, 1973. That was an absolvtely essential ingredient that was to be alleged, enquired into and proved in the instant case. I find myself absolutely helpless in the circumstances of the present case to assist the respondent-wife in salvaging the maintenance that the learned trial Magistrate has deemed fit to grant to her under section 125 of the Criminal Procedure Code. Very unfortunately this revision application will have to be allowed.

(3.) The revision application is allowed. The order passed by the learned trial Magistrate awarding separate maintenance at Rs. 150 per month to the respondent-wife from the applicant husband is set aside and inst ead it shall be directed that the wife's application for separate maintenance under section 125 of the Criminal Procedure Code, shall stand rejected.