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Judgment
Ashwani Kumar Singh, J.—Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing on behalf of the opposite party No. 2. This revision application has been filed by the petitioner against the judgment and order dated 26th May, 2012 passed by the learned Principal Judge, Family Court, Ara, Bhojpur in Maintenance (Cr. Misc.) Case No. 165 of 2008 by which Rs. 4,000/- per month has been ordered to be paid to opposite party No. 2 by the petitioner as maintenance allowance.
Learned counsel for the petitioner has raised a short point. He has submitted that there is no finding in the impugned order that the opposite party No. 2 is unable to maintain herself. He has submitted that in absence of such finding by the court below, the order impugned is bad in law.
On the other hand, learned counsel for the opposite party No. 2 has submitted that a plea was taken by the opposite party No. 2 in the Court below that she is unable to maintain herself. However, he concedes that in the impugned order there is no finding in that regard.
The findings of the Court below have been recorded in paragraph Nos. 12 and 15 of the impugned order dated 26th May, 2012 which read as under:--
"12. From perusal of the evidence adduced by both the parties it is crystal clear that the petitioner is the legally wedded wife of the O.P. and there is no denial from the side of the O.P. that he is maintaining the petitioner with full dignity and honour. The O.P. has taken only one stand that in matrimonial case No. 12/05 the court has awarded Rs. 500/- per month by way of interim maintenance. So in the instant case the amount should not excluded* more than Rs. 500/-. In my mind the interim maintenance is a separate matter which has already been adjudicated by the Ld. Family Court, Buxar in matrimonial case and the present case has been filed u/s 125 Cr.P.C. and it is entirely separate matter.
From the perusal of the evidence of the petitioner and considering the material available on record, I am of the view that the O.P. is not maintaining the petitioner since 2004 and therefore she is entitled for maintenance. Accordingly, the petition is allowed."
In my view, in order to resolve the controversy, it is necessary to examine the import of Section 125(1) of the Code of Criminal Procedure.
Section 125(1) of the Code of Criminal Procedure authorizes a Magistrate of First Class (now the Principal Judge, Family Court) to order for payment of monthly allowance for maintenance. The relevant part thereof would be as quoted hereunder:--
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).........
(c).........
(d)...........
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, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct........."
(Emphasis supplied)
Having examined the statutory provision, as quoted above, a duty is cast upon the Court that before maintenance allowance is awarded in favour of the wife, two conditions have to be satisfied. (i) There must be a finding of fact that the wife is unable to maintain herself; and (ii) that her husband has sufficient means but neglects or refuses to maintain the wife. Unless such findings of facts are recorded, the Court concerned cannot award maintenance allowance in terms of Section 125(1) of the Code of Criminal Procedure.
In this regard, I may refer to the judgment of Hon''ble Supreme Court in the case of Chaturbhuj Vs. Sita Bai, . The relevant part of which is quoted hereunder:--
"6. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient........
But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself......."
Having heard the parties and examined the record, I find substance in the arguments advanced on behalf of the petitioner.
The Court below has not given a finding of fact that the opposite party No. 2 is unable to maintain herself. This fact alone makes the order impugned bad in the eye of law. In that view of the matter, the revision application is allowed and the order dated 26th May, 2012 passed in Maintenance (Cr. Misc.) Case No. 165 of 2008 by the learned Principal Judge, Family Court, Bhojpur, Ara is set aside.
*Ed.--sic--exceed?