BANSHI LAL Vs. MAGNI BAI

JUDGEMENT

(1.) THOUGH both the above miscellaneous petitions arise out of separate cases under section 125 of the Code of Criminal Procedure and parties are also different so also the orders under challenge are different, but as a common question of law is involved in these petitions, they are being disposed off by a common order and a copy of this order shall be placed on each file.

(2.) TO appreciate the common question of law in both the petitions, I will first narrate in brief the facts of each case.

(3.) THE provisions of section 125 Cr. P. C. have been brought on the Statute book to provide for maintenance by a person to the wife, to the legitimate or illegitimate minor child, to his father or mother if he or she is unable to maintain himself or herself and also to bis legitimate or illegitimate child (not being a married daughter who has attainted majority which by a reason of any physical or mental abnormally or injury unable to maintain itself THE intention of the legislature in enacting the above mentioned provision is clear and it is to cast an obligation upon such a person who neglects or refuses to maintain his wife, parents or child, as the case may be, to carry out his obligation towards them. In Ramesh Chandra vs. Veena Kaushal (l), in para 9, it has been held as follows : "this provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Art. 15 (3) reinforced by Art 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. THE brooding presence of the constitutional sympathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. It was so viewed, it is possible to be selective in picking out that interpretation out of two alternative which advances the cause - the cause of the derelicts". 8. THE argument of the learned counsel for the petitioners is that in the present day society there can be no inequality on the ground of sex and, therefore, if the wife is able to maintain herself or even has the potential to earn, while considering the case under sec, 125 (1) Cr. P. C. as to whether maintenance should be awarded to wife or not, it is the duty of the court to consider these factors. According to learned counsel if wife is educated and can earn but chooses not to earn and to sit idle, then the court should not award maintenance to her and then it cannot be said that she is 'unable to maintain herself' within the meaning of sub-sec. (1) of sec. 125 Cr. P. C. It is also contended that in the cases in hand Smt. Magni Bai and Smt. Nosar Bai belong to such a caste in which usually ladies work and contribute to the income of the family. THErefore, the court should not have awarded any maintenance to them. In support of the submission the learned counsel placed reliance on Chandra Prakash Bodh Raj vs. Sheela Rani Chandra Prakash (2 ). Though it was a case where it was observed that 'an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to family standard, but according to learned counsel it will apply to case of a wife who has potential to earn being able bodied and young belonging to such a caste where usually wife contributes to the income of husband or such a woman who is educated and if she likes to earn, she can earn. But I am afraid, the argument of the learned counsel cannot be accepted as the avowed object of sec. 125 is to provide for maintenance to the neglected wife, minor child (legitimate or illegitimate) and parents who are not able to maintain themselves.