PRABHULAL Vs. PARWATIBAI

JUDGEMENT

(1.) MT. Parwatibai wife of Prabhulal instituted proceedings against her husband for maintenance under Section 488 of the Code of Criminal Procedure. The husband resisted the petition on the ground of infidelity of his wife. The learned Magistrate Bhanpura, allowed the application and directed that maintenance at Rs. 30/- per month should be given to Parwatibai. The opponent went up in revision to the learned Sessions Judge, Garoth who has reported the case with a recommendation that the order of the Magistrate should be set aside and the case remanded for further inquiry. The learned Magistrate found the allegation of infidelity improved and it cannot be said that the finding is without foundation. It is in evidence, however, that the petitioner Prabhulal Is a minor and his means to pay the maintenance consist only of his interest in the joint family property. The learned Magistrate appears entirely to have ignored the meagre evidence tendered by the applicant Parwatibai regarding the means of the petitioner. The solitary witness on this point P. W. (9) Devilal states that me income of the property in the hands of the petitioner's father is about 800/- rupees per year. In cross-examination he reduces the figure to Rs. 250/- and it is further in evidence that the father has to maintain six persons in the family. It was necessary for the learned Magistrate before determining what maintenance should be allowed to have determined the actual means of the husband of Parwatibai and allocate proper part of it for maintenance. It is true that a person taking on the responsibility of marriage has to maintain his wife and mere minority or the fact that the husband does not work cannot come in the way of the maintenance of the wife, but it is in all cases necessary to ascertain the visible means and the earning capacity of the husband if he is compelled to work.

(2.) I, therefore accept the reference and remand the case to the court of first instance to dispose of it after determining the means of the husband in the light of above observations.