M. B. SHARMA, J. - (1.) THOUGH both the above miscellaneous petitions arise out of separate cases under section 125 of the Code of Criminal Procedure and parties are also different so also the orders under challenge are different, but as a common question of law is involved in these petitions, they are being disposed off by a common order and a copy of this order shall be placed on each file.
(2.) TO appreciate the common question of law in both the petitions, I will first narrate in brief the facts of each case. Smt. Magni filed an application under section 125 Cr. P. C. against Banshi Lal, her husband for the grant of maintenance for her self and her minor son on the ground that Banshi Lal, her husband, having sufficient means to maintain her, has refused or neglected to maintain her and her minor child. According to her the monthly income of Banshi Lal was about Rupees 400-500 per month and she claimed maintenance at the rate of Rs. 125/- per month for herself and her minor child. It was also mentioned in the petition filed by her that in village Sabalpur, where she resides she is unable to find any service or any work, from the income of which she can support herself and her minor child. The application was contested by Banshi Lal, where in the legitimacy of the minor child was questioned. After enquiry, the learned Magistrate under his order dated January 25, 1980 holding that the monthly income of Banshi Lal was Rs. 200/- p. m. , an award of a sum Rs. 50/- per month was granted as maintenance. Some how it was not ordered by him in his order, from what date the amount awarded by him as maintenance to Smt. Magni Bai shall be payable Shri Banshi Lal preferred revision petition before learned Sessions Judge, who vide his order dated September 6, 1980 dismissed the revision petition but ordered that the amount of Rs. 50/- per month awarded by learned Magistrate shall be payable to Smt. Magnibai from the date of her application under Sec. 125 (a) Cr. P. C. Sari Banshi Lal has preferred miscellaneous petition in this Court which as already stated earlier has been registered as S. B. Cr. Misc. Petition No. i90/80. Smt. Nosar Bai filed an application under section 125 (1) Cr. P. C. against Shankar, her husband and Shankar's father Dalla in the court of learned Judicial Magistrate, Chittorgarh on February 28, 1978 on the ground that her husband having sufficient means to maintain her, has refused to maintain and neglects her and has also taken one Smt. Surji as second wife She (Smt. Nosar) was being maintained by her father for the last 3-4 years and this rendered her and her father in indebtedness. She set up a case that her husband and her father-in-law have 50 bighs of irrigated land and also deal in money lending to the extent of 50,000/ -. She claimed Rs. 400/- p. m. as maintenance. The claim was contested by Shankar and his father wherein it was admitted that Shankar has taken a second wife but according to him he did so only after Nosar had left and did not return for a long. The case was set up that Smt. Nosar has potential to earn Rs. 10/- per day by doing some work. After enquiry the learned Magistrate under his order dated March 27, 1979 granted maintenance @ Rs. 75/- p. m. The learned Sessions Judge, Chittorgarh in revision petition filed by Shankar reduced the amount of maintenance from Rs. 75/- per month to Rs. 55/- per month. Shankar has preferred miscellaneous petition No. 187/81 in this Court. The common question of law which is involved in both these petitions may now by set out. This is as follows ; "whether it is necessary for a wife for claiming maintenance under Sec. 125 (1) Cr. P. C. to aver in the application that she is unable to maintain herself and also to prove the same, and if so, whether in the absence of averment or proof, maintenance can not be granted to her under provisions of section 125 Cr. P. C. " Let us now read the relevant portion of section 125 of the new Code, which reads as follows : "125. Order for maintenance of wives, children and parents - (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father, or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect, or refusal, order such person to make a monthly allowance for the maintenance of his wife, or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such persons as the Magistrate may from time to time direct. "
(3.) THE provisions of section 125 Cr. P. C. have been brought on the Statute book to provide for maintenance by a person to the wife, to the legitimate or illegitimate minor child, to his father or mother if he or she is unable to maintain himself or herself and also to bis legitimate or illegitimate child (not being a married daughter who has attainted majority which by a reason of any physical or mental abnormally or injury unable to maintain itself THE intention of the legislature in enacting the above mentioned provision is clear and it is to cast an obligation upon such a person who neglects or refuses to maintain his wife, parents or child, as the case may be, to carry out his obligation towards them. In Ramesh Chandra vs. Veena Kaushal (l), in para 9, it has been held as follows : "this provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Art. 15 (3) reinforced by Art 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. THE brooding presence of the constitutional sympathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. It was so viewed, it is possible to be selective in picking out that interpretation out of two alternative which advances the cause - the cause of the derelicts". 8. THE argument of the learned counsel for the petitioners is that in the present day society there can be no inequality on the ground of sex and, therefore, if the wife is able to maintain herself or even has the potential to earn, while considering the case under sec, 125 (1) Cr. P. C. as to whether maintenance should be awarded to wife or not, it is the duty of the court to consider these factors. According to learned counsel if wife is educated and can earn but chooses not to earn and to sit idle, then the court should not award maintenance to her and then it cannot be said that she is 'unable to maintain herself' within the meaning of sub-sec. (1) of sec. 125 Cr. P. C. It is also contended that in the cases in hand Smt. Magni Bai and Smt. Nosar Bai belong to such a caste in which usually ladies work and contribute to the income of the family. THErefore, the court should not have awarded any maintenance to them. In support of the submission the learned counsel placed reliance on Chandra Prakash Bodh Raj vs. Sheela Rani Chandra Prakash (2 ). Though it was a case where it was observed that 'an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to family standard, but according to learned counsel it will apply to case of a wife who has potential to earn being able bodied and young belonging to such a caste where usually wife contributes to the income of husband or such a woman who is educated and if she likes to earn, she can earn. But I am afraid, the argument of the learned counsel cannot be accepted as the avowed object of sec. 125 is to provide for maintenance to the neglected wife, minor child (legitimate or illegitimate) and parents who are not able to maintain themselves. Under sec. 488 of old Criminal Procedure Code only in case of a child the 'words unable to maintain itself were there and the words did not find mention so far as the wife claiming maintenance was concerned. Under sec. 125 Cr. P. C. these words have also been provided for the wife who claims maintenance on the ground that her husband having sufficient means has neglected or has refused to maintain her. The contention of learned counsel is that the legislature never uses superficial words and insertion of the words 'unable to maintain herself in sec. 125 (l) (a) of the new Cr. P. C. is not without significance and for a wife who claims maintenance from her husband it is necessary for her to narrate in the application and to prove that she is unable to maintain herself and then she is able to prove that her husband having sufficient means neglects or refuses to maintain her she is entitled to maintenance. In short the contention of the learned counsel is that the burden of proof that wife who claims maintenance is "unable to maintain herself' is on the wife and in the absence of an averment in the application and of proving the facts, the Magistrate has no power to grant any maintenance to her. In support of his submission the learned counsel for the petitioners have placed reliance on Manmohansingh vs. Mahindra Kaur (3 ). Smt. Zubedabi vs. Abdul Khader (4), Bishambhar Dass vs. Smt. Anguri (5) Abdul Munsif vs. Salima (6) and Sompooranam vs. Arjunan (7) The view of the Allahabad High Court in two above referred cases is that by maintenance providing under section 125 (l) (a) new Cr. P. C. that maintenance to a wife should only be granted if she is unable to maintain herself, the legislature has departed from sec. 488 old Cr. P. C. and as such under section 125 (l) (a) of new Cr. P. C. maintenance cannot be ordered to a wife who is simply neglected by her husband or whose husband has refused to maintain her and maintenance and can only be granted to a wife who proves that she is unable to maintain herself. In the case of Manmohan Singh (supra) neither there was any averment nor any evidence to the effect that the petitioner's wife was unable to maintain herself. There was also a finding by the Chief Judicial Magistrate, Dehradun to this effect. In the case of Smt. Anguri (supra), there was no mention in the application or proof on behalf of the wife that she was unable to maintain herself. All that she stated was that she was maintaining herself with some difficulty. It was also held that this is not tenia mount to her being unable to maintain herself. In the two Karnataka cases, which have been referred to above, a similar view has been taken. But in Salima's case, (supra) it was held that though a normal healthy person may be fairly educated, is capable to maintain herself but the presumption does not extend to concluds that such earning will be sufficient to maintain such a person. It was also he!d that the fact that a wife who was a normal healthy person and educated refused to earn for herself could be taken into consideration while considering the quantum of maintenance that the husband was liabe to contribute but merely because she refused to earn it did not mean that she was not at all entitled to maintenance under Sec. 125 (l) (a) of the now Code read with explanation (b) to it. Mr. Mehta, learned counsel for non-petitioner in one of the cases has referred to Deochand v. State of Maharashtra (8), Captain Ramesh Chandra Kaushal v. Mrs. Veena Kaushal (supra) and Smt. Malan v. Baburao Yeshwant Jadhav (9 ). His submission is that it is not necessary for the wife claiming maintenance to aver that she is unable to maintain herself and it is the duty of the court while examining whether a wife claiming maintenance has been refused or neglected to be maintained by her husband having sufficient means to apply its mind and give a finding on the material brought by both the parties, whether or not the wife is unable to maintain herself. In Deochand's case (supra) it was a case under Sec 488 old Cr. P. C. the refusal of the wife to live with the husband on the ground that the husband has contracted marriage with another woman and the wife was held entitled for maintenance. Their Lordships observed in para 2 "as the second respondent was justified in refusing to live with the appellant, the latter was under a legal obligation to maintain her. As he has neglected to maintain her the High Court was justified in passing the order under appeal". I have already referred to above to Veena Kaushal's ease, (supra) according to the observation of their Lordships of Supreme Court, that Sec. 125 Cr. P. C. is a measure of social justice and specially enacted to protect women and children. A reference may also be made here to Bhagwan Dutt v. Smt. Kamala Devi (10) in para 19 their Lordships have observed : "the object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments". These observations were with reference to section 488 Cr. P. C. in which did not provide that only such a wife who is unable to maintain herself, is entitled to maintenance from her husband having sufficient means to maintain and having refused or neglected to maintain her. But still their Lordships laid down that if the wife has separate income that should also be taken into account together with the earning of the husband and his commitments. ;