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. l 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. An application was moved on behalf of the present petitioner that the application under section 125, Code of Criminal Procedure, filed by Shrimati Doris Rose Bela 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 Doris Rose Bela she is drawing salary of Rs. 480/ -. It was also contended on behalf of the husband, the present petitioner, that Shrimati Doris Rose Bela has abused the process of the court inasmuch as that though the children were studying in the Methodist Girls Home, Meerut, yet they were withdrawn and their studies have been stopped.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. 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. 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.
(3.) 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 contended on behalf of Shrimati Doris Rose Bela that her husband has married, another wife, and as she 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. The respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. Learned counsel for the petitioner has basically placed reliance on G. Mariah V G. Vijayalaksmi (1 ). In this ruling it has been held that "if the wife is unable to maintain herself, then only an order 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 therefore she is not entitled to maintenance. However, the child living with her is entitled to maintenance from his father. " ;