J. M. L. Sinha, J. - (1.) SMT. Munni Devi, hereinafter called the applicant, filed an application under Section 125 of the CrPC 1973 claiming maintenance against her husband Om Pal, opposite party. The Munsif-Magistrate, Etah, who tried the case, vide his order dated 8th October, 1976, allowed the application and directed the opposite party to pay maintenance to the applicant at the rate of Rs.75/- per mensem with, effect from 1st April, 1975. Aggrieved against it Om Pal opposite party filed a revision in the court of Sessions. The learned III Addl. Sessions Judge, Etah, who heard the revision, allowed the revision and dismissed the application under Section 125 of the CrPC because the applicant did not lead evidence to prove that she was unable to maintain herself. Dissatisfied with the order passed by the learned III Addl. Sessions Judge, SMT. Munni Devi filed the present revision.
(2.) WHEN the revision came up before a learned single Judge of this Court, it was reiterated on behalf off the opposite party that, in view of the decisions of this court in case Man Mohan Singh v. Smt. Mohindra Kaur, 1976 AWC 335, the applicant could not be granted any maintenance because iit was not proved by her that she was unable to maintain herself. The learned single Judge found it difficult to agree with the view expressed in the aforesaid decision and, accordingly, directed that this case may be listed ben fore a larger Bench. It is thus that the present revision has come up before us. Before addressing ourselves on the legal question we may first examine the factual position of the case. The application under Section 125 CrPC was filed by the applicant cm 21st May, 1974. It was, inter alia, stated in the application that the applicant was unable to maintain herself and that her father was a poor man and hence he too could not bear her burden. A plea had thus been raised in the application that the applicant was unable to maintain herself. The learned Munsif-Magistrate, before whom the application was filed, examined the applicant on oath before issuing notice to the opposite party. In that statement, too, the applicant stated that she was unable to maintain herself and further that the opposite party had remarried with one Smt. Shakuntala. On his appearance in the trial court, the opposite party filed a written statement. The plea raised by the applicant that she was unable to maintain herself, was not controverted in the written statement filed by the opposite party. The only objection raised in the written statement was that, even though the marriage of the opposite party was settled with the applicant, it was never celebrated and hence the applicant could not claim maintenance from him. The applicant led evidence to prove her marriage with the opposite party and the fact that the opposite party had remarried himself with one Shakuntala. The opposite party led evidence to prove that no marriage had taken place between him and the applicant. The fact that the marriage had taken place between him and Smt. Shakuntala was admitted by Om Pal opposite party. The trial court recorded a finding to the effect that the applicant was a lawfully married wife of the opposite party. This finding was neither assailed in the lower court of revision nor was it disturbed. In fact that finding was not even assailed before us in the present revision.
(3.) THE precise question that arises in the context of the aforesaid facts is whether the applicant's claim for maintenance could be refused on the ground that she did not lead evidence in proof of the fact that she was unable to maintain herself, even though she had raised a plea to that effect in the application which was not controverted at any stage by the opposite party. The relevant part of Sec. 125 of CrPC reads as follows :-;