S.K. Verma, J. - (1.) Through this writ petition under Article 226 of the Constitution of India the order dated 5.8.1989 passed by the VI Additional Munsif Magistrate granting maintenance of Rs. 200/- per month in favour of opposite party No. 1 and the order dated 13.2.1991 passed by III Additional District & Sessions Judge rejecting the revision filed by the petitioner are sought to be quashed through a writ of certiorars. The learned Counsel for the parties have been heard as length.
(2.) The impugned order of the learned Magistrate under Section 123 Cr.P.C. has been challenged firstly on the ground that the Magistrate has not given any finding of fact as to whether the petitioner was possessed of sufficient means and had actual income of a certain amount out of which Rs 200/- were allowed as maintenance. Secondly it has been challenged on the ground that there is no finding of fact regarding neglect by the petitioner of opposite party No. 1. Thirdly the order has been challenged on the ground that there is no finding of fact as to whether opposite party No. 1 had any income or she was incapable of maintaining herself. Fourthly the around of challenge is that there was no finding of fact regarding the offer of the petitioner that he was ready to maintain and willing to live with opposite party No. 1 as husband and wife.
(3.) Regarding the first ground a perusal of the impugned order passed by the learned Magistrate would indicate that he has recorded a finding of fact that the petitioner is a healthy and able-bodied person and that he has house tractor and some other agricultural land. The question whether a hereon has means or not to maintain his wife was considered in Fakira v. State (AIR 1955 Ald. 320) and it was held by this Court that the word 'means' includes earning capacity. Hence when a man is healthy and able-bodied he must be taken to have the means to support his wife. In this decision AIR 1926 Madras 346 (In re Kandasami Chetty) was relied. In yet another decision of this Court, Maya Ram v. Smt. Sambatia (1964 ALJ 936) it was upheld that it is not necessary that before maintenance allowance could be fixed the exact income earned by the husband should be ascertained else the decision would be termed as arbitrary. It was further held that the word 'means' in Section 488 Cr.P.C. (old) 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. In vet another decision of this Court, Ved Nath Misra v. Smt. Yashoda Misra (1986 Ald Crl. Cases 164). where maintenance was claimed by wife against husband who was student and not earning but depended upon his father, maintenance granted by Courts below for wife and daughter was reduced from Rs. 125/- to Rs. 100/- per month. In other words maintenance can be allowed against even a student who is not earning because after marrying if he is healthy and able bodied he would be deemed to have earning capacity to maintain his wife. There is thus no scope for interference so far as this finding recorded by the learned Magistrate is concerned.;