GYANABAI Vs. PEETAM

JUDGEMENT

(1.) This revision has been preferred by the applicant/wife against the order of the trial Magistrate rejecting her application for maintenance. The applicant is the married wife of the non-applicant. They were married six years back. One son was born out of their wedlock who died subsequently. Three years after the marriage, the non-applicant turned her out of the house and in June 1979 he remarried another woman Kanchan and he is living with her since then. The applicant is living with her parents and some how making out a living by working as a labourer. The non applicant is a well to the cultivator and owns about 50 acres of joint family land She therefore, claimed maintenance at the rate of Rs. 150/- per month. The application was opposed by the nonapplicant, though he admitted that he had taken a second wife as it is customary in his caste to take a second wife, the non-applicant has got 5 brothers, out of them 3 are joint with his father he is an ordinary cultivator and with the difficulty they are able to maintain themselves. The learned trial Magistrate rejected the application for maintenance on the sole ground that there is no pleading by the applicant that she is unable to maintain herself. On the other hand, she has mentioned that she is able to make out a living with difficulty by working as a labourer.

(2.) After hearing the parties, I am of the opinion that the order of the trial Magistrate has to be reversed. The proceedings under section 125 of the Code of Criminal Procedure are summary proceedings and are quasi-civil in nature. The rules of pleading are not strictly applicable. Her allegation in the application that with difficulty she is able to maintain herself by working as a labourer tantamount to saying that she is not in a position to maintain herself properly. In her statement she has clearly mentioned that she has no property or means to maintain herself. There is no cross examination to her statement. I think this fulfils the requirement of section 125 that she is unable to maintain herself. The non applicant has admitted in his cross-examination that about 12 acres of land are jointly owned by his father and unless in which he has got a share. He has 5 brothers out of them 2 have got separate lands. The applicant is a well to do person and he had the luxury of taking a second wife. Under the circumstances, he is in a position to pay maintenance to the applicant at the rate of Rs. 50/- per month.

(3.) With the result the revision is allowed. The order of the trial Magistrate is set aside and the nonapplicant is directed to pay maintenance at the rate of Rs. 50/- per month to the applicant from the date of this order.