R.C.Deo Sharma - (1.) THIS application under section 482 CrPC arises out of maintenance proceedings instituted by the applicant against the opposite parties under section 125 of the Code of Criminal Procedure. The applicant claimed to be the wedded wife of Arjun opposite party no. 1 who is the son of Baldeo opposite party no. 2. It was alleged that the opposite parties after the marriage started maltreating her and she was also beaten on occasions and her ornaments and property retained and ultimately she was turned out and sent to her father's place. They were not prepared to keep the applicant or maintain her and when a notice was given for providing maintenance a false reply was given. It was also alleged that her husband opposite party no. 1 was earning about Rs. 500/- per month by dealing in flowers and opposite party no. 2, her father-in-law, was earning Rs. 400/- per month, and hence she was entitled to maintenance of Rs. 250/-.The claim to maintenance was resisted by her husband opposite party no. 1 on the ground that some four or five days after the marriage the applicant's father had taken her to his house along with the ornaments, clothes etc. and had thereafter never agreed to send her to his place. He denied maltreatment and said that he was still prepared to keep her with him and maintain her. It was further stated that by doing sewing and embroidery work and by doing Jujmani, the applicant was earning about Rs. 300/- whereas the opposite party me. 1 was a student of Intermediate classes and the joint family of the opposite parties consisted of about ten members while the income of the family was only Rs. 300/- earned by opposite party no. 2 who was a gardener in the district hospital. The learned Munsif- Magistrate before whom the matter came up for hearing found that the opposite party no. 1 was neglecting the applicant and. was legally and morally bound to maintain her. He also found that assuming according to the applicant's statement that her husband was earning Rs.300/- per month by selling flowers though it had not been proved and another Rs. 300/- were being earned by her father-in-law, this amount of Rs. 600/- would not be sufficient for the maintenance of the large family of the opposite parties and consequently nothing could be spared for the maintenance of the applicant.Finding further that the opposite party no. 1 was a student of Intermediate classes and it was not expected of him that he would give up studies and start earning in any manner to maintain the applicant, the application was dismissed with the observation that in case the husband possessed sufficient means he would certainly be liable to maintain the applicant.In a revision filed against this order, the learned Additional Sessions Judge, Hardoi observed that in case the husband was found to be earning Rs. 300/- the finding of the learned Munsif that the income was not sufficient to provide any maintenance to the applicant would be erroneous and would have been liable to be set aside, but as a matter of fact the opposite party no. 1 was not earning anything at all and was a mere student of B. Com. at the time and consequently he was not possessed of sufficient means to maintain the applicant. In the result the dismissal of the applicant's claim was therefore, upheld. It is against this order of the two courts below that the applicant has made this application under section 482 CrPC praying that the aforesaid two orders passed by the Courts below may be quashed, and a reasonable amount of maintenance be ordered to be paid to the applicant.
(2.) I have heard the learned counsel for the parties at quite some length. It has not been denied that the applicant is the wedded wife of opposite party no.1 and is living with her parentis. It has also been found as a fact that the husband is neglecting to maintain her and that the was not at fault in refusing to stay with the husband in view of the maltreatment and danger to her life. Thus her right to get maintenance from the husband was otherwise fully held established, but on the plea that the husband did not possess sufficient means to maintain her, the petition was dismissed. The only point for consideration therefore, was whether in the circumstances it could rightly be held that the opposite party no. 1 had sufficient means to maintain his wife and was yet neglecting or refusing to maintain her. As a fact it has been found that the husband was not earning anything by selling flowers and that he was a student studying in B. Com. when the revision was heard. It has also not been denied that the opposite party no. 2 is employed as a gardener in the district hospital. It has nowhere been suggested that his salary which was alleged to be about Rs. 300/- per month was anything substantially more than this. The point for consideration therefore, was whether it was a valid defence for the husband to say that although he was an able bodied healthy young man but because he was studying and was not actually earning though was capable of doing something, he was not bound to provide any maintenance to the applicant. Reliance has been placed by the applicant's learned counsel on the case of Maya Ram v. Smt.Sampatia, 1964 AWR 527. The following observations made in the judgment are relevant : " The word ' means ' in section 488 of the Code of Criminal Procedure does not signify only the visible means such as current income gained from a definite employment or real property. If ;a man is healthy and able-bodied, he must be deemed to have the means to support his wife unless he proves that owing to ill-health, or accident or disease he is disabled to effectively use his earning capacity. " It was argued that the opposite party no. 1 was young and able-bodied man and therefore, he should be presumed to have sufficient means to support his wife. In that case, however, it was found as a fact that the husband possessed joint family property in the form of some ten bighas agricultural land and although his separate share in the income was not definitely decided yet it was not denied that he had a share in the ancestral property and its income and in addition he was an able-bodied young man capable of earning more. It was in these circumstances that the maintenance of Rs. 30/- per month which was granted by the Magistrate on the basis of his unascertained income from the ancestral agricultural land, was found to have been rightly granted. In the instant case, the opposite party no.1 was a student and it has not been denied that he was actually carrying on his studies when the petition was filed in the Intermediate Class and when the revision was heard by the learned Sessions Judge, in B.Com. Ist Year. There is absolutely no allegation that the family consisting of father and son had any other source of income besides the salary of the father who was employed as a gardener in a hospital and which was alleged to be about Rs. 300/- per month. A similar matter came up for consideration, though in slightly different circumstances, in Ram Chandra Giri v. Ram Surat Giri, 1982 Lucknow Criminal Reports 226. In that case, a son claimed maintenance from his father. (One of the points raised in defence was that the son was an able-bodied healthy young man and he could earn his own livelihood and consequenty was not entitled to maintenance. It was found as a fact that the son was a student and had no source of income and was living with one of his relations on the maternal side who was unable to support him because of his meagre income. It was held that the concept of able-bodied person or his ability to earn could not be extended to such cases. It was not expected of a student to leave his studies and start working as a manual labourer or in any other capacity to support himself. The father's liability to maintain the son in these circumstances was upheld and looking to the income of the father an amount of Rs. 100/- was awarded as maintenance. Obviously what weighed in the mind of the Court was that even though the son was capable of earning as he was an able-bodied young man yet because he was merely a student and was pursuing lis studies, it could not be expected that he would give up his studies and start earning in order to support himself. In the present case, the husband was undoubtedly a student and although he was healthy and able-bodied yet it would be grossly unfair to him if he was compelled to give up his studies and his further career and start earning in any capacity in which a [person having passed his Intermediate examination could be employed. True that even after passing Intermediate examination or for that matter B.Com. if by now he has passed the same, the opposite party no. 1 could engage himself in some employment so as to earn something and support himself and his wife by paying her separate maintenance, but at this critical juncture when he is looking forward for a career, to expect that he would give up his studies for the sake of maintaining his wife, would not be justified in the circumstances. At the same time it is also true that under the garb of being a student it should not be open to the husband to go on contending indefinitely that ho is a student and not actually earning and consequently should not he held liable to pay maintenance to his wife. Each case is to be decided on its own merits. The present one is a marginal case where although the husband being an able-bodied person and having passed atleast his Intermediate examination should be in a position to earn something, yet to cut short his career at this stage in order to compel him to take up an employment or do any physical labour to earn livelihood, would be highly unjust and involve stretching too far the concept of able-bodied person's ability to earn. At one stage I was feeling inclined to send back the case to the court of the Magistrate in order to enable the parties to adduce evidence about the present state of affairs and the stage at which the studies of the opposite party no.1 were and his ability to earn because the case was instituted in January 1980 and decided by the first court in November 1980 and by revisional court in May 1981 and since then it is not clear whether the opposite party no. 1 has completed his Final B.Com. examinations successfully or is still pursuing the same course in case of failure at any stage, but this may require some fresh pleadings also with an opportunity of admission or denial to the opposite party no. 1 and consequently remanoing the case, would not be very appropriate in the circumstances. While therefore, the petition under section 482 CrPC deserves to be dismissed as there is no apparent error in the judgments of the courts below, it is to be observed that the petitioner shall be free to make another application under section 125 off the Code of Criminal Procedure if so advised whenever it is felt that the opposite party no. 1 should be considered to possess sufficient means to maintain her, snch means including the concept of able-bodied person's capacity to earn. With these observations, the petition is dismissed. Petition dismissed.;