S.W. Puranik, J.
1. This revision application by the husband is filed against the order of Judicial Magistrate, First Class, First Court, Nagpur dated 29-11-1980 in Miscellaneous Criminal Application No. 504/79 whereby he had directed the applicant husband to pay a maintenance of Rs. 100 to non-applicant No. 1---wife per month.
2. This criminal revision application challenges the said order of maintenance on two grounds. First that the non-applicant No. 1, wife in her application under section 125 of Criminal Procedure Code has nowhere pleaded that she is unable to maintain herself. According to the petitioner here, unless the said averment is specifically made in the application, the trial Court should not consider her application for maintenance. Secondly the applicant also contends that apart form the want of pleading to that effect the applicant wife has not deposed in her evidence about her inability to maintain herself. Shri M.T. Joshi, the learned Counsel for the applicant, therefore, contended that whatever rights the wife Chandrakanta may have, she certainly cannot fulfil the ingredients of section 125 Criminal Procedure Code to claim any maintenance.
3. Shri M.S. Gupta, the learned Counsel appearing for the non-applicant No. 1 Chandrakanta, contended that the very fact that she had moved the application under section 125, Criminal Procedure Code shows patently that she was unable to maintain herself and was required to file the said application. He, therefore, submits that such specific pleading is not necessary. As regards the want of proof in the evidence in respect of the wife's inability to maintain herself or that she has no source of income, Shri Gupta submits that in the written statement, the husband has denied the fact that she is not earning and in fact he has suggested that she is a diploma holder in tailoring and she used to do some business and earned her livelihood before marriage. According to Shri Gupta it was for the husband to show that the applicant was earning rather than expecting a negative evidence on behalf of the wife that she was not having any income.
4. From the perusal of the application, it is apparent that it is very brief to sketchy. From the perusal of application under section 125 in para 1, it is seen that the wife Chandrakanta states that she was married on 22-3-1978 with Marotrao The present applicant, that she was residing with him and that she gave birth to a son on 22-3-1979 and shortly thereafter i.e. on 30-4-1979 she was brought to her parents house by the husband. She further alleges that the husband has performed second marriage with one Indira on 12-11-1979. Thereafter she wanted to join her husband but the husband refused to allow her entry in the house. In the next paragraph she only states that the husband is having sufficient means and is getting a salary of Rs. 400 per month, but he refuses to maintain the wife and her minor son. In the third and the last paragraph, she says that it is, therefore, necessary that the husband be directed to pay Rs. 200 per month for the maintenance of herself and her son. It is thus clear that she has nowhere pleaded in her application that she is unable to maintain herself. On the perusal of evidence also it is seen that she has not made any statement about her earning or non-earning and nor has she stated that at present she has no occupation or no source of earning.
5. It appears that during the evidence, several factors emerged before the Court, particularly regarding the dispute between the husband and wife, the second marriage of the husband to Indira and that the wife was holding a diploma in tailoring prior to her marriage with the present petitioner and that for about three months she had earned out of tailoring some small amounts. The learned trial Court after recording evidence came to the conclusion that even though there is no specific pleading regarding inability to maintain herself, the evidence is sufficient to show that she is unable to maintain herself. Be it as it may, it has been held as follows in Smt. Kamlabai v. Shri Keshav, 1979 Bom.C.R. 169.
'...................but if the petitioner herself has failed to aver and then has failed to prove that she is unable to maintain herself, as she is required to do under section 125 of the Code, it was not permissible for the learned trial Magistrates to Award the maintenance.'
In this view of the matter, I find that there is much substance in the contention of the Counsel for the applicant that in the instant case when there are no pleadings and no proof forthcoming on the part of the applicant wife about her inability to maintain herself, the trial Court was not justified in granting her maintenance. It is a good argument on the part of the non-applicant No. 1's Counsel to say that the very fact that she has moved this application under section 125 shows that she was unable to maintain herself and was required to file these proceedings. That, however, is not a sound argument in law inasmuch as the proceedings under section 125 of Criminal Procedure Code are basically civil in nature and the ingredients of section 125 enjoins a duty upon the applicant to aver three facts,
(i) that she is the wife of the non-applicant;
(ii) that the non-applicant has sufficient means, yet is refusing or neglecting to maintain her; and
(iii) that she herself is unable to maintain herself.
Unless, these pleading are available in the application, the non-applicant will not get a proper opportunity to meet the said case. Hence, I feel that in proceedings under section 125 these averments on the part of the applicant are essential and for want of it, the application ought to fail. These pleadings could have been inserted even after the filing of the application, by way of amendment, but that was also not done. The learned trial Judge on the basis of those pleadings framed an issue as to whether the applicant proves that she is legally married wife of the non-applicant and whether she is entitled to maintenance and whether she was neglected and whether she is entitled to refuse to reside with the non-applicant because of his second marriage. The second issue was, whether she is entitled for maintenance and last issue is about the quantum of maintenance. Thus, the learned trial Judge has also not considered the issue as to whether the applicant was unable to maintain herself.
6. In the present application, it also has to be noted that the wife Chandrakanta had sought maintenance for herself as well as for her child who is 11/2 years, of age at the time of the recording of the evidence. The child is not to be blamed for the defect in the pleading or in the evidence. Moreover, the child being 11/2 years, it need not be emphasised that it is unable to maintain itself and secondly the fact that the child is not being looked after by the husband is also established and borne out from record. Even under the Hindu Adoption and Maintenance Act, the husband is bound to maintain the child. Under section 125 of Criminal Procedure Code, the husband is bound to maintain his minor child legitimate or illegitimate married or unmarried who is unable to maintain itself. In the present facts and circumstances of this case, the 11/2 year old child who is living with wife Chandrakanta, is, therefore, entitled to maintenance.
7. The question, therefore, will be what is the quantum of maintenance to be paid. The applicant wife had alleged that the husband is getting a salary of Rs. 400/- per month, but that fact has not been proved. The evidence on record is neither here nor there. The husband has stated that he is working on daily wages at the rate of Rs. 10/- per day and is also getting a share in the agricultural land held by his joint family. The trial Judge, had apparently come to the conclusion that the husband might be getting a salary of Rs. 400/- per month which is not supported by evidence. I feel, in the circumstances of the case, the income of the husband cannot be ascertained at more than Rs. 300/- per month and he should be held liable to maintain the child by paying allowance of Rs. 60/- per month. The non-applicant No. 1, Chandrakanta is, however, not entitled to any maintenance as she has neither averred nor proved the fact that she is unable to maintain herself. Hence the following order.
8. Criminal Revision Application No. 17 of 1981 is partly allowed. The order of the learned trial Court in awarding maintenance to non-applicant No. 1. Chandrakanta at Rs. 100/- per month is quashed and set aside while it is directed that the present applicant, husband shall pay to the non-applicant No. 1, a sum of Rs. 60/- per month for maintenance of her son. This amount is payable from the date of application till today and every month onwards.
Order of maintenance set aside.