RAIBARI BEHERA Vs. MANGARAJ BEHERA

JUDGEMENT

(1.) AGGRIEVED by the impugned order rejecting the petitioner's claim for maintenance made against the opposite party, her husband, under Section 125, Criminal p. C. (hereinafter referred to as the Code), on the sole ground of paucity of evidence indicating that the petitioner was unable to maintain herself, she has come to this Court in revision for relief against the order passed, as submitted before me on her behalf by Mr. Das, on a point of view based on a mere technicality and not on the facts and evidence entitling her to claim maintenance and the contention raised on behalf of the opposite party by Mr. Bohidar is that in view of her own evidence that she had been having business and maintaining herself, the order against the petitioner could not be called in question.

(2.) ADMITTEDLY , the opposite party married the petitioner about three decades ago and a daughter, born through their wedlock, was married. After such a long married life, the opposite party chose to take a second wife and as held by the learned Magistrate, this fact had been established by the petitioner. It was also held in favour of the petitioner that the petitioner's theory of ill -treatment, desertion and neglect by the opposite party was true. The learned Magistrate further observed that the petitioner was entitled to separate living and maintenance because the opposite party had admitted in his written statement and also in his evidence that he had married another lady, namely, Jajamati. After recording these findings in favour of the petitioner, the learned Magistrate took up the objection raised on behalf of the opposite party that the petitioner was disentitled to maintenance as on her evidence, she was able to maintain herself and accepting the contention raised on behalf of the opposite party that the petitioner, on her own showing, had been carrying on business in rice in weekly markets and had opened a small grocery shop at village Baurkola and as such, was in a position to maintain herself and taking into consideration the fact that the petitioner had not, in terms, stated either in her petition or in her evidence that she was unable to maintain herself, the learned Magistrate, on the principles laid down in the case of Bishambar Dass v. Smt. Anguri 1978 Cri LJ 385, by the Allahabad High Court, held that the petitioner was not entitled to the grant of maintenance as she was able to maintain herself.

(3.) THE facts of the reported case of the Allahabad High Court, referred to above, on which reliance had been placed by the learned Magistrate were different and could be distinguished. In that case, the lady seeking maintenance had neither stated in her petition nor in her statement in the court that she was unable to maintain herself and had merely stated that she was maintaining herself with some difficulty. In the instant case, however, there was clear and convincing proof from the side of the petitioner that she was not able to maintain herself for which she had even to work on wages,