NIRMALA BHANJI Vs. JAYANTILAL VITHALDAS

JUDGEMENT

(1.) The applicant wife has preferred this revision application against the order of the J.M.F.C. Junagadh who has dismissed her application for maintenance filed under sec. 125 of the Code of Criminal Procedure 1973 on the ground that though the respondent husband has neglected her she is not entitled to any maintenance because she is able bodied and capable of earning her livelihood. This view is taken by the learned Megistrate on the interpretation of cl. (a) of sec. 125 of the Code which stipulates maintenance to a wife who is unable to maintain herself. The view which the learned Magistrate has taken is that since the petitioner wife does not suffer from any mental or physical disability she should be presumed to be able to maintain herself.

(2.) The short facts of the case are that the petitioner-wife is married to the opponent husband in the year 1955 according to Hindu rites. Thereafter the opponent husband had gone to East Bengal from where he returned in the year 1962 along with one lady named Anita with whom he had married the second time. It is an admitted fact that the opponent husband at present resides with this Anita whom he treats as his second wife.

(3.) The learned Magistrate has found on facts that the petitioner has proved that her husband has sufficient means to maintain her and that he has neglected to maintain her. The learned Magistrate has however refused to pass any order of maintenance by making the following observations: