REWATI BAI Vs. JAGESHWAR

JUDGEMENT

(1.) This is wife's application under Section 482 Cr. P.C. invoking inherent powers of this Court to quash order dated 25-8-1988 passed by Shri A. K. Potdar, Judicial Magistrate Class-I, Raigarh as approved by order dated 11/03/1989 passed by Shri D. N. Dixit, Sessions Judge Raigarh in Criminal Revision 117 of 1988 dismissing her claim for maintenance under Section 125 Cr. P.C.

(2.) The applicant in her application dated 30/06/1987 submitted that she was married to the non-applicant about 40 years before in accordance with Mitakshara, Hindu Law and had given birth to four children. She further submitted that she was driven out of her marital home by the non-applicants about three years before without any reason. She also alleged that she was old and without any support and was, therefore, unable to maintain herself. According to her, the non-applicant had in his possession 17 acres of agricultural land which yielded two crops every year providing with annual income of Rs.20,000/- She, therefore, claimed maintenance at the rate of Rs. 500/- per month. It appears the non-applicant remained absent in spite of service of summons on him and was, therefore proceeded ex parte on 29-3-1988. In subsequent ex parte proceedings the applicant gave her statement in support of allegation in the application as aforesaid. She, however, stated that she was somehow maintaining herself by working as a labourer. Actual words stated by her are "Main Mazadoori Kar Apana Pet Bharti Hoon". The learned Magistrate in his order dated 25-8-1988 acted on the aforesaid statement and held that the condition of Section 125(1)(a) Cr. P.C. that the wife was unable to maintain herself was not proved and dismissed the application. The revisional Court found nothing wrong or illegal in the approach of the learned Magistrate and, therefore, dismissed the revision application. That is how the matter is brought to this Court for rectification of the injustice.

(3.) The object of the proceedings for maintenance under Section 125 Cr. P.C. is to prevent vagrancy by compelling a person to support his wife or child of father or mother unable to support itself. Though this provision is not penal in nature, it aims at securing enforcement of duty imposed upon a person by law. Though the level of living required to be maintained is not clarified in this provision, it has been held to be ensuring supply of food, clothing and shelter to the deserted wife and children. In spite of it, the inability of the wife to maintain herself is a condition precedent to the maintainability of her application for maintenance. The phrase "unable to maintain herself" if read in the context of the opening sentence to this section, would mean the means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to some how survive. That is why, the maintenance has not been denied to a wife on the ground that she refused to earn though she was capable of earning. It is, therefore plain that inability of the wife to maintain herself cannot be judged in the light of her capacity to make a living. If a lady prefers to survive by begging the same would not amount to her ability to maintain herself. It was in this context that in Abdul Salim v. Najima Begum 1980 Cri LJ 232 (All) it was held that neither begging by the wife nor her being maintained by her relative would be sufficient for this purpose. She herself should be able to maintain status not below that she enjoyed in her husband's house. This logic and rational appears to be just and proper and achieves the object and purpose of the Act. Under the circumstances, the facts of the case will have to be examined in the context of these legal principles. In the instant case, the applicant had lived as the wife of non-applicant for about 40 years. She did not have any means of livelihood of her own while living with non-applicant. The non-applicant is an agriculturist with 17 acres of land yielding annual income of about Rs. 20,000/-. The fact that applicant is now about 50 years of age is also relevant. Now if a lady diving for 40 long years in such circumstances is thrown out without providing for her maintenance, she would die if she does not do anything to survive, if under such compelling circumstances, she works as a labourer can it be said that she is prossessed of means to maintain herself ? Her statement that "Main Mazadoori Kar Apana Pet Bharti Hoon", does not show her ability and capability but indicates her compulsion to survive, what else could be the reason for already advanced age of 50 years to accept working as labourer. It is unfortunate that the learned Magistrate and the revisional Court have taken out the aforesaid sentence from her evidence and given the meaning which cannot be given to it, if read in the context and as a part of his statement as whole. She has in spite of the aforesaid statement wanted Rs. 500/ - per month for her maintenance since this was her stated requirement in spite of her earning as labourer it would indicate that her earning by working as labourer was not enough to maintain herself. The learned Magistrate has apparently not adopted the correct approach in dealing with the application. This Court is, therefore, not able to agree with him. In the opinion of this Court, the only fact that she was compelled to work as labourer to survive was, by itself, not sufficient to establish that the applicant was able to maintain herself. In this view of the matter, the impugned order must be held to be suffering from a patent illegality needing correction by this Court by exercising its inherent power.