P.D. Kudal, J.
1. This revision petition is directed against the order of the Learned Chief Judicial Magistrate, Jodhpur dated June 3, 1980.
2. The brief facts of the case which are relevant for the disposal of this revision petition are that the non-petitioner No. 1 Shrimati Doris Rose Bela along with her two daughters Kumari Susmith and Kumari Suniti and her son Sandeep filed an application under Section 125, Code of Criminal Procedure against the present petitioner. This petition was submitted before the learned Chief Judicial Magistrate' on November 16, 1979.
3. An application was moved on behalf of the present petitioner that the application under Section 125, Code of Criminal Procedure, filed by Shrimati DORIS Rosa Be1a is not maintainable as she is an earning member and it cannot be said by any stretch of, imagination that she is unable to maintain herself. It was contended that even according to the statement of Shrimati Dares Rose Bela she is drawing salary of Rs. 480/-.
4. It was also contended on behalf of the husband, the present petitioner, that Shrimati Doris Rose Bela has abused the process of the court in as much as that though the children were studying in the Methodist Girls Home, Meerut, yet they were withdrawn and their studies have been stopped. It was therefore contended that as Shrimati Doris Rose Bela has not come before the court with clean hands she should not be allowed any maintenance under Section 125, Code of Criminal Procedure.
5. It has been further contended on behalf of the husband that the maximum amount which is payable by way of maintenance under Section 125, Code of Criminal Procedure, is Rs. 500/- and as Shrimati Doris Rose Bela is drawing a sum of Rs. 480/- as salary and other allowances she is not entitled to maintain this petition.
6. On behalf of Shrimati Doris Rose Bela it has been contended that the present revision petition filed) by the husband against the order of the learned Chief Judicial Magistrate dated June 3, 1980 is not maintainable as the order of the Chief Judicial Magistrate was only an interlocutory order, and by virtue of Section 397(2), Code of Criminal Procedure a revision petition against an interlocutory order is not maintainable.
7. It was further contended on behalf of Shrimati Doris Rose Bela that the children are with her and that she is properly looking after their education and is properly maintaining them. It has also been con ended on behalf of Shrimati Doris Rose Bela that her husband has married, another wife, and as he is having luxury of a second wife, he should not hesitate in making payment of the amount of maintenance which has been claimed by her. It has been further contended that her husband is earning more than Rs. 1000/- and it is very difficult for her to maintain herself and her three children, who are all school going with the total income of Rs. 480/- per month.
8. The respecive contentions of the learned Counsel for the parties have been considered and the record of the case carefully perused.
9. Learned Counsel for the petitioner has basically placed reliance on G. Mariah v. G. Vijayalakshmi 1979 Cr. LJ 1226. In this ruling it has been held that 'if the wife is unable to maintain herself, then only an order under Section 125 can be passed against the husband. The words 'unable to maintain herself' from Section 125(1)(a) would include only such expenses which are neither penurious nor luxurious and which would meet her daily necessities and keep her away from starvation. Where the wife is serving as a typist and earning Rs. 459/- as monthly income she cannot be said to be 'unable to maintain herself' and therfore she is not entitled to maintenance, However the child living with her is entitled to maintenance from his father.
10. On behalf of the wife-respondent reliance has been placed on Abdul Munqf v. Salima 1979 Cr. LJ 172. In this regard the learned Judge has placed reliance on the following paragraph from the judgment of the Supreme Court:
The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find 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 she status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income also is taken into account together with the earnings of the husband and his commitments.
11. Reliance has also been placed on Bhagwan Datt v. Kamla Devi : 1975CriLJ40 Danitaram v. Saraswati Ban 1978 Cr. LJ 806 and Manmad Kunhi v. Rukihya 1978 Cr. LJ 1645. Reliance has also been placed on Md. Akber Ali v. Arabia Khatoon 1973 Cr. LJ 950.
12. On behalf of the husband in rejoinder it was contended that the revision petition against the interlocutory ordsr is maintainable in view of the verdict of the Supreme Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . In the alternative it was contended that this application under Section 397, Code of Criminal Procedure may be converted into an application under Section 482, Code of Criminal Procedure.
13. The petition under Section 125, Code of Criminal Procedure, which is pending before the learned Chief Judicial Magistrate is only at the initial stage. The parties have yet to lead evidence which would enable the learned Magistrate to come to certain findings. The contention' of the learned Counsel for the husband that as the wife is earning about Rs. 480/-per month, the petition under Section 125, Code of Criminal Procedure, is per se not maintainable has absolutely no force. The wife is entitled to file an application and maintain it under Section 125, Code of Criminal Procedure. The fact that she is earning a monthly salary of Rs. 480/- could be taken into consideration by the learned Magistrate if he as all decides to grant maintenance to her. Apart from the fact whether the wife is entitled to maintenance allowance or not, this cannot be disputed than if she children are putting up with their mother, the father is liable to pay maintenance for the education and up bringing of the children. Learned Counsel for the husband has contended that by making false, statements Shrimati Doris Rose Bela has abused the process of the court. At this stage it is not possible to form any opinion of this question. When the parties lead their respective evidence, the evidence on record shall be evaluated and the court would then form an opinion as to whether the process of the court has been abused or not.
14. The order of the learned Magistrate dated June 3, 1980 on the face of it appears to be an interlocutory order and as such the revision petition is barred under Section 397(2) Code of Criminal Procedure and is thus not maintainable.
15. The request of the learned Counsel for the husband that the application for revision may be converted into an application under Section 482, Code of Criminal Procedure, is wholly untenable. There is no justfication for converting this application under Section 482, Code of Criminal Procedure, because the ends of justice do not require so.
16. The other points which have been raised by the learned Counsel for the petitioner here can only be decided after the parties have led their evidence and the court has applied its mind to it.
17. For the reasons stated above. I have no hesitation in holding that the present revision petition has no merit and is accordingly dismissed.