SURJIT KAUR Vs. NATHA SINGH

JUDGEMENT

(1.) THIS revision on behalf of Surjit Kaur is directed against the order of the Additional Sessions Judge, Patiala, dated December 10, 1979, whereby maintenance allowance of Rs. 50/ - granted by the Chief Judicial Magistrate, Patiala, by his order dated July 21, 1979, against her husband Natha Singh was set aside. There was a further order of the learned Magistrate for the grant of Rs. 50/ - per month to the two children of the parties. That part of the order was, however, affirmed by the learned Additional Sessions Judge. The sole ground upon which the maintenance allowance was denied to the petitioner, as mentioned in Para 6 of the order, is that she failed to make a mention of this fact in her statement made at the time of the inquiry before the trial Court that she was unable to maintain herself. It was then mentioned that no evidence was produced by her for showing her inability to maintenance herself. The original petition filed far maintenance has been perused. It was specifically mentioned therein that the respondent in spite of his having sufficient means to maintain the petitioner had neglected and refused to maintain her. Natha Singh respondent, when examined as RW -3, was questioned about the means of the petitioner to maintain herself. He said at that time that he did not know whether the petitioner was employed anywhere. He further said that he was unable to give a definite reply to this question whether the petitioner had any kind of income so as to maintain herself. It thus stands proved from the statement of the respondent himself that the petitioner has no means of any steady income. The respondent never took this kind of plea that he had been sending any maintenance allowance to his wife after both of them had separated. It has been held in Smt. Santosh Kumari v. Jaswant Rai, 1981 P.L.R. 712, that the absence of the plea that wife was unable to maintain herself will not be fatal to the grant of the relief under section 125 of the Code of Criminal Procedure. It has then been held in Smt. Munni Devi v. Sri Om Pal, 1980 All. L.J. 296, that a wife's claim in her application for maintenance under section 125 (1) (a) of the Code of Criminal Procedure on the ground that she was unable to maintain herself could not be refused on the ground that she did not lead evidence in proof of the fact that she was u -table to maintain herself where she had raised a plea to that effect in her application which was not controverted at any stage by her husband. In Smt. Malan v. Baburao Yeshwant Jadhav, 1981 Cri. L.J. 184, the Court went to the length of holding that section 125 of the Code of Criminal Procedure does not require that the wife should plead in her petition that she is unable to maintain herself.

(2.) THE learned Additional Sessions Judge was clearly in the wrong when he rejected the claim of the petitioner simply on this ground that she failed to make a mention of this fact in her statement that the respondent had neglected to maintain her or that she did not have sufficient means to maintain herself. This kind of plea was there in the maintenance petition and even the statement made by the respondent at the stage of the inquiry shows this fact that he had not given any maintenance allowance to her and that the petitioner had no alternative source of income.

(3.) THIS revision is accepted. The order of maintenance passed by the trial Magistrate so far as the petitioner is concerned is restored and a maintenance allowance of Rs. 50/ - per month shall, therefore, be payable to her with effect from November 25, 1975. Revision accepted.