R.C. Patnaik, J.
1. The neglected wife, whose application for maintenance Under Section 125 of the Code of Criminal procedure has been rejected, has moved this Court for vacating the order of the Magistrate and granting her maintenance.
2. Facts shortly stated :
The petitioner married the opposite party in 1973 and lived a happy conjugal life for some years. However, when the petitioner did not conceive, it is alleged, the opposite party kept a tnistress and started ill-treating and neglecting and occasionally assaulting the petitioner. The petitioner, having ultimately been driven out from the house, took shelter under the roof of her father. As she was unable to maintain herself, she made the application for grant of maintenance at the rate of Rs. 150/- per month.
3. The opposite party did not dispute the marriage, but denied the other allegations. He pleaded that all his attempts to take back the petitioner had failed due to the obstinacy of the petitioner and especially when he did not have sufficient means, the application should be rejected.
4. Upon a consideration of the evidence, the learned Magistrate held that the petitioner had made out a case of ill-treatment, assault, neglect and that she did not leave the husband's abode voluntarily.
5. The learned Magistrate, ' however, refused to grant the relief of maintenance on the ground that the wife had failed, to examine. The employer., or the co-employee; of the husband, to show that he. had an income of Rs. 300.00 per month nor did she establish by evidence that the husband was possessed of landed property.
6. Sri Bidhayak Patnaik, learned Counsel appearing for the petitioner, submitted that the learned Magistrate did not keep the law in view while disposing of the application of the petitioner and drew my attention to the case of Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu v. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu (AIR 1925 Mad 757) where their Lordships held :-
The obligation of a husband to maintain his wife is one arising out of the status of marriage. It is a liability created by the Hindu Law, in respect of the jural relations of a Hindu family....
and to Article 554 of Mulla's Hindu Law (Fourteenth Edition)
A wife is entitled to be maintained by her husband, whether he possesses property or not....
Manu, as cited in Mitakshara, has enjoined :
The aged parents, a virtuous wife and an infant child must be maintained even by doing a hundred misdeeds.
The obligation to support the wife is a personal obligation attaching from the moment of marriage. It is independent of possession of property, (Mayne's Hindu Law, 11th. Edition, 818).
7. No doubt an order Under Section 125 can be passed only if a person having sufficient means neglects or refuses to maintain his wife, child, parents etc. It is, however, well settled that the expression 'means' occurring in Section 125 does not signify only visible means, such as, real property or definite employment and if a man is healthy and able-bodied, he must be held to be possessed of means to support his wife, child etc. The Courts have gone to the extent of laying down that the husband may be insolvent or a professional beggar or a minor or a monk, but he must support his wife so long as he is able-bodied and can eke out his livelihood.
In Chandra Prakash's case : AIR1968Delhi174 Chief Justice I. D. Dua (as his Lordship then was) was of the view, (Para 7):
An able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably 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 the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.
this Court in Veragam's case (ILR 1963 Cut 4151 held;.the words 'sufficient means' should not be confined to the actual pecuniary resources but should have reference to the earning capacity....
The opposite party has not led any evidence for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife. The learned Magistrate, therefore erred in law in rejecting the wife's application for maintenance.
8. The question that arises next is what should be the amount of maintenance? The principles are to be kept in mind:
The object of the provisions being to prevent vagrancy and destitution, it has to be found out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious; but is modestly consistent with the status of the family. The needs and requirements of the wife, child or parents for a moderate living, the earnings of the husband, son or father or his capacity to earn and his commitments are relevant factors.
9. Taking the facts and circumstances of the case into consideration. I direct that the petitioner is entitled to maintenance at the rate of Rs. 75/- per month from 27-7-1978, the date of application.
10. In the result, the judgment of the Magistrate is set aside and the revision is allowed.