John Beaumont, C.J.
1. This is an application in revision in which the applicant challenges the order made by the City Magistrate, Ahmedabad, under Section 488 of the Criminal Procedure Code, requiring the applicant to pay Rs. 25 a month for the maintenance of his wife. The applicant belongs to the Jain community and it is not disputed that some years ago he became a Sadhu, Under Section 488 it is provided that if any person having sufficient means neglects or refuses to maintain his wife an order may be made. The first point raised by Mr. Velinker, on behalf of the applicant, is that the respondent is no longer his wife. The second point is that he has no sufficient means. Either point if proved would take the case out of the section.
2. Upon the first point as to whether the respondent is still the wife of the applicant, the argument is that the applicant by becoming aSadhu became civilly dead. It is said that for all purposes of inheritance he is presumed to be dead, therefore his wife can inherit the widow's share and therefore she is not a wife but is in substance a widow. I think, however, that the last proposition does not logically follow from the two former. It is not disputed that in the Jain community marriage prima facie lasts until physical death. Marriage involves status, and no authority has been cited to show that a man, by taking vows and becoming a Sadhu, can affect the status of his wife and turn her from a married woman into an unmarried woman. In the absence of any such authority I am not disposed to hold that that result can be achieved. I think, therefore, that the respondent is still the wife of the applicant and to that extent at any rate Section 488applies.
3. Then the next question is whether the applicant has sufficient means to maintain his wife. Mr. Velinker contends that the word 'means' in Section 488 denotes visible means and that there must be some income, revenue, estate or property. But I think that is too narrow a definition of the word. I think that 'means' within Section 48b includes a capacity to earn money, and that if a man can be shown to be capable of earning money, then he has the means to maintainhis wife. Prima facie, a man twenty-six years of age, as the applicant in this case is, must be presumed to be capable of earning money. But that presumption may be rebutted. He may be able to show that infact, whether through disease or accident, he is not an able-bodied man, or he may show that owing to the state of the labour market he is in fact incapable of earning any money. I think also it is open to him to show that for some moral reason he cannot earn money without incurring such penalties as no Court would expect him to incur. I am not prepared to hold that a man by merely becoming a Sadhu is in law excused from maintaining his wife. But, on the other hand, if he can prove that by reason of the vows which he has taken he is incapable of holding any property or of earning any money which will enable him to maintain his wife without incurring such serious consequences that no Court could expect him to incur them, then I think that in fact he cannot be said to have sufficient means to maintain his wife.
4. Now, the learned Magistrate dealt with the matter in this way.
Having willingly, voluntarily and knowingly contracted a marriage, the opponent is statutorily bound to maintain his wife as long as he is free from any physical infirmity and is able to work. He cannot get rid of his statutory obligation to maintain his wife on the mere plea that he is a Jain Sadhu, It is therefore not necessary for this Court to enter into the question of what can be and what should not be done by a Jain Sadhu.
5. It is not, I think, sufficient merely to show that the applicant is an able-bodied man and to infer from that alone that he has sufficient means to maintain his wife. I think the question which the learned Magistrate says it is not necessary to decide is in fact one which it is necessary to decide. A certain amount of evidence was called in this case as to what the result of becoming a Jain Sadhu was, but the evidence is not very satisfactory and we have no record of what the learned Magistrate thought about it because he says it is not necessary to go into the point. I think the best course will be to send the case back to the learned Magistrate with directions to him to take evidence upon the question whether by becoming a Jain Sadhu the petitioner was rendered incapable by reason of his vows or otherwise of maintaining his wife and to sand to this Court a record of the evidence. The finding should be returned within a month after the record reaches the lower Court. Interim stay of the lower Court's order.
6. I agree.