CHANAN SINGH Vs. JANGIR KAUR

JUDGEMENT

(1.) WHETHER the technicalities of construing civil pleadings are equally attracted to an application for maintenance by a wife under Section 125 of the Criminal P. C. 1973 is the significant question which has necessitated this reference.

(2.) FOR the limited purpose of adjudicating on the aforesaid issue it suffices to mention that the respondent-wife had claimed maintenance at the rate of Rs. 200/- per mensem under Section 125 of the Code. Her application was dismissed by the Judicial Magistrate, Ist class, primarily on the ground that the parties were living separately by mutual consent. On a revision preferred by the respondent-wife the Sessions Judge, Bhatinda, reversed the judgment and granted maintenance at the rate of Rs. 50/- per mensem only. He also specifically rejected the plea on behalf of the husband that because the wife had not expressly pleaded in her application that she was unable to maintain herself, this by itself would be fatal to her claim. Both the spouses have come up against the aforesaid order of revision which was first placed before my learned brother Tewatia, J. Noticing the significance of the question whether in the petition under Section 125 it was incumbent on the wife to plead that she was unable to maintain herself and some conflict of judicial opinion in the other High Courts on the said point the matter was referred for an authoritative decision.

(3.) AS a matter of legislative history it may be noticed that Section 125 of the Code is the successor provision of Section 488 of Cr. P. C. of 1898. In the new Code this section along with the connected ones has been recast and rationalised and now incorporated in the self-contained Chapter IX thereof. As the heading plainly indicates it provides in a consolidated form for the maintenance of wives, children and parents. The detailed provisions contained in the five sub-sections of Section 125 spell out both the right and the pre-requisites for an order of maintenance. The succeeding Section 126 lays down the procedure to be followed in these proceedings including the mandate that the evidence therein shall be recorded in the manner prescribed for a summon case. Section 127 then provides for any alteration in the maintenance allowance ordered earlier on a proof of change in the circumstances whilst the last Section 128 in the Chapter empowers any Magistrate to enforce an, order of maintenance at any place where the person against whom it is made, may be.