S.C. Agrawal, J.
1. This revision petition is directed against the judgment dated 4th December, 1980 passed by the Additional Sessions Judge, Udaipur. By this judgment aforesaid the Additional Sessions Judge reversed the judgment dated 9th January, 1980 passed by the Munsif Magistrate, Mavli in an application for maintenance filed by the petitioner under Section 125,Cr.P.C.
2. The said application was filed by the petitioner with the allegation that she is the wife of the non-applicant and since the non applicant was not keeping her & had married again, she may be allowed maintenance @ Rs.300 per month. The said application filed by the petitioner was opposed by the non-applicant and one of the grounds for opposing the petition was that the petitioner was living in adultery with one Bhuralal. The Magistrate I class, Mavli by his judgment dated 9th January, 1980 allowed the application of the petitioner and directed the non applicant to pay a sum of Rs, 60/- per month as maintenance allowance to the petitioner. The Judicial Magistrate held that the petitioner did not have sufficient means to maintain herself and further that the non-petitioner had refused to maintain her and therefore, the petitioner wes entitled to claim maintenance from the non applicant. The Judicial Magistrate did not accept the case set up by the non applicant with regard to adultery on the part of the petitioner. The non-applicant filed a revision petition which was allowed by the Additional Sessions Judge, Udaipur by his judgnent dated 4th December, 1980. The Additional Sessions Judge affirmed the finding recorded by the Magistrate on the question of adultery. But the Additional Sessions Judge was of the view that it was necessary for the petitioner to have made an averment in the petition that she was unable to maintain herself and that there is no averment to that effect either in the petition or in the evidenece produced in the case. The Additional Sessions Judge, also held that neither in the pleadings nor in the evidence it was pleaded that the non-applicant has refused to maintain the petitioner. The Additional Sessions Judge, therefore, dismissed the petition filed by the petitioner on the ground that neglect and refusal on the part of the non-applicant to maintain the petitioner is not proved and that there is on proof that the petitioner is unable to maintain herself Feeling aggrieved by the said judgment of the Additional Sesions Judge, the petitioner has filed this revision petition.
3. I have heard Shri D. S. Shishodia, the learned Counsel for the petitioner, and Shri R. N. Mathur, the learned Counsel for the non-applicant.
4 At the outset it may be observed that even though in the concluding part of the judgment, the Additional Sessions Judge has stated that pleadings about refusal to maintain are missing and that neglect and refusal to maintain by the non-applicant is not proved, but in the main part of the judgment, the Additional Sessions Judge while considering the argument raised by the non-applicant before him with regard to the neglect and refusal of non-applicant to 'maintain the petitioner, has recorded the following finding:
On the contrary it fully appears from the testimony of Heera Bai that despite of her willing to live with Nandlal, it is Nandlal, who does not keep her.
It would thus appear that the Additional Sessions Judge has affirmed the finding recorded by the Judicial Magistrate that the petitioner was willing to live with the non-applicant and that it is the non.-applicant who is not willing to keep her. In view of the aforesaid finding that has been recorded by the Additional Sessions Judge, it must be held that the Additional Sessions Judge is not right in stating at the end of the judgment that the petition was liable to be dismissed for the reason that neglect and refusal on the part of the non applicant to maintain the petitioner was not proved.
5. Thus the only ground on the basis of which the petition for maintenance filed by the petitioner can be said to have been dismissed is that there is no averment in the pleadings and there is nothing in the evidence to show that the petitioner is unable to maintain herself.
6. The provision of Section 125 Cr.P.C. came up for consideration before this Court in Bansilal v. Smt. Manibai 1981 RLW 477. In this case this court, after taking note of the decisions of the Supreme Court as well as the decisions of the various High Court, has held as under:
After going through Section 125(1)(a) of the new Cr.P.C. and looking to the object for which this section has been enacted, namely to provide maintenance by a person having sufficient means and who neglects or refuses to maintain his wife, legitimate or illegitimate child and father and mother and also after going through authorities cited at the bar I am of the opinion that it will be better for the wife, to aver in her petition that she is unable to maintain herself. But, it is not obligatory on her part to do so. Merely because she fails to aver so in the petition, the petition cannot be thrown out and the court will have to decide this question having regard to the circumstances of each case on the material placed before it by both the parties. It is necessary for the court, while granting maintenance to the wife from her husband who has, sufficient means and has refused or neglected to maintain her to say that the wife is unable to maintain herself. Potential earning capacity of the wife should not be and cannot be taken into consideration. While granting maintenance to the wife the separate income of the wife, if any is also to be taken into account and such an amount of maintenance is to be awarded to the wife which will ensure reasonable needs and requirements of wife for such; moderate living which the court in the given case considers necessary and proper.
In view of the aforesaid decision in Bensilal v. Smt. Magnibli (svpra) it must be held at it is not obligatory on the part of the wife to aver in her petition that she is unable to maintain herself and that the petition cannot be thrown out merely because she has failed to aver so in the petition, and that the court will have to decide this question having regard to the circumstance of each case on the meterial placed before it by the parties
7. In the present case the from a perusal of petition that was filed by the petitioner it does appear that the petitioner has made an averment in the petition that she is unable to maintain herself and the Additional Sessions Judge was not right in holding that there is no such averment in the petition. In this regard reference may be made to para 1 of the petition, wherein it has been stated that the non applicant had maltreated the petitioner and that about 7 years back she had left his house and she has been living with her father. In para 2 the petitioner has stated that during this period she is being maintained by her father. In para 4 it has been stated that she was not in a position to maintain herself on her own. The aforesaid averments contained in the petition are supported by an affidavit of of petitioner that was filed alongwith the petition. In my view the aforesaid averments contained in the petition clearly make out the case that the petitioner is unable to maintain herself.
8. Coming to the evidence that has been produced by both the parties, it may be observed that the petitioner herself, in her deposition as P.W. 1. has stated that as she is Brahmin by caste she does not go to work as a labourer. She has also denied that she is able to maintain herself by working as a labourer.
9. Shri Mathur, the learned counsel for the non-applicant has invited my attention to the statement of Dhanraj P.W. 5 as well as the statements of non applicant Nandlal R.W.I, Chunilal R.W. 2 and Lakhilal R.W. 3 Dhanraj P. W.5. the brother of the petitioner. There is nothing in his statement to show that the petitioner has any independent source of income. Shri Mathur has, however, pointed out that Dhanraj has statted that the petitioner was living in a rented house at Menar. The submission of Shri Mathur was that the fact that the petitioner was living in a rented house shows that she must be having some independent source of income. In my view on the basis of the aforesaid statement of Dhanraj that the petitioner was living in a rented house at Menar for some time it is not possible to hold that the petitioner had an independent source of income. The petitioner was the best person to say as to how she was living in a rented house at Menar but no such question was put to the petitioner during the course of her cross examination. As regards the evidence of non-applicant, Nandlal and the two winsses examined by him viz. Chunilal and Lakhilal, it may be observrd that their evidence has been considered by the Judicial Magistrate who has held that on the basis of the said evidence it could not be held that the petitioner had independent source of income and she was able to maintain herself. The Judicial Magistrate has pointed out that no applicant Nandlal has stated that the petitioner was living as wife with Bhuralal and was doing cultivation with him but he has also stated that the father of the petitioner was sending grain to her and that the petitioner was also earning 60-70 Rupees per month by doing labour but during the course of her cross examination no questions in this regard were put to the petitioner. As regards the evidence of Chunilal and Lakhilal the Judicial Magistrate has observed that according to Chunilal the petitioner was working as a labourer whereas Lakhilal had stated that the petitioner was living with Bhuralal. After taking into consideration the evidence aforesaid, the Judicial Magistrate held that even if the evidence adduced by the non-applicant is accepted, it would show that the petitioner was getting grain from her father's house and was having her meals with her uncle Bhuralal and the aferesaid circumstance would lead to the inference that she was doing so because she has no means to maintain herself. In my view the aforesaid assessment of the evidence made by the Judicial Magistrate does not suffer from any infirmity. I would, therefore, affirm the finding that has been recorded by the Judicial Magistrate that the petitioner is unable to maintain herself.
10. It must therefore, be held that apart from the fact that the petitioner, in her petition has made an averment that she was unable to maintain herself, there is evidence on record to show that the petitioner is unable to maintain herself. The judgment of the Additional Sessions Judge dismissing the petition filed by the petitioner on the view that neither there is an averment in the petition nor was any evidence produced by her to show that the petitioner is unable to maintain herself cannot, therefore, be upheld.
11. In the result the revision petition is allowed, the judgment dated 4th December, 1980 passed by the Additional Sessions Judge, Udaipur in criminal revision No. 6/80 is set aside and the judgment dated 9th January, 1980 passed by the Judicial Magistrate, Mavli in criminal misc. No. 2/77 is restored.