T. U. MEHTA, J. ( 1 ) THE applicant wife has preferred this revision application against the order of the J. M. F. C. Junagadh who has dismissed her application for maintenance filed under sec. 125 of the Code of Criminal Procedure 1973 on the ground that though the respondent husband has neglected her she is not entitled to any maintenance because she is able bodied and capable of earning her livelihood. This view is taken by the learned Megistrate on the interpretation of cl. (a) of sec. 125 of the Code which stipulates maintenance to a wife who is unable to maintain herself. The view which the learned Magistrate has taken is that since the petitioner wife does not suffer from any mental or physical disability she should be presumed to be able to maintain herself. ( 2 ) THE short facts of the case are that the petitioner-wife is married to the opponent husband in the year 1955 according to Hindu rites. Thereafter the opponent husband had gone to East Bengal from where he returned in the year 1962 along with one lady named Anita with whom he had married the second time. It is an admitted fact that the opponent husband at present resides with this Anita whom he treats as his second wife. ( 3 ) THE learned Magistrate has found on facts that the petitioner has proved that her husband has sufficient means to maintain her and that he has neglected to maintain her. The learned Magistrate has however refused to pass any order of maintenance by making the following observations:to conclude as the applicant is aged 38 years old and she does not suffer from any physical or mental disability she must be presumed to he able to maintain her by her own labour. Moreover she has got sewing machine and she knows work of sewing This is a mean of earning for her and if she does sewing work she can earn about Rs. 50. 00 to 60/- per month. Moreover I have held that she gets the rental income of the said house which according to her admission comes to Rs. 80. 00 to 85/- per month from two tenants. There was third tenant but he has vacated. 50. 00 to 60/- per month. Moreover I have held that she gets the rental income of the said house which according to her admission comes to Rs. 80. 00 to 85/- per month from two tenants. There was third tenant but he has vacated. But there is scope for letting a part of it to third tenant In the result I hold that the applicant is able to maintain herself. Where she is able to maintain her the opponent cannot be compelled to give maintenance to her. So this application deserves to be dismissed. I will subsequently touch the question whether the learned Megistrates finding that the petitioner receives the income of Rs. 80. 00to 85/-per month from the two tenants is in any manner justified from the record of the case. Before doing that I will first touch the question of law because the learned Magistrate has dismissed the application for maintenance by the petitioner wife on the ground that she does not suffer from any physical or mental disability and therefore she should be presumed to be able to maintain herself by her own labour. ( 4 ) SEC. 125 of the Code of 1973 contemplates that if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself the 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 Explanation which is attached to sub-sec. (3) of this section says that if a husband has contracted marriage with another woman or keeps a mistress. it shall be considered to be just ground for his wifes refusal to live with him. So far as this explanation is concerned it fully applies to the facts of the case because it is an admitted position that the opponent husband lives with Anita whom he treats as his second wife. ( 5 ) THE question however is whether the learned Magistrate wa justified in rejecting the petitioners application for maintenance on the ground that she is able bodied and does not suffer from any physical or mental disability. It should be noted that sec. ( 5 ) THE question however is whether the learned Magistrate wa justified in rejecting the petitioners application for maintenance on the ground that she is able bodied and does not suffer from any physical or mental disability. It should be noted that sec. 488 of the Code of Criminal Procedure 1898 did not qualify the right of a wife to get maintenance by her inability to maintain herself Such a qualification did attach to the case of an illegitimate child and not to the case of a wife. It is therefore evident that the Code of 1973 which governs the facts of the present case has male a change in the legal position inasmuch as the wifes right to get maintenance is qualified by her inability to maintain herself. The question therefore is what is the meaning of the qualifying words unable to maintain herself The view taken by the learned Magistrate seems to be that if the wife is able bodied and possesses an earning potentiality she should be presumed to be a person who is able to maintain herself. Therefore the question is does the inability contemplated by this explanation mean a want of the potentiality to earn or does it mean a situation wherein a wife is unable to secure her maintenance even though she is physically and mentally fit and possesses a potentiality to maintain herself. Now merely because a person is found to be able bodies and capable of making earning can it be said that he is able to earn. We know many persons who are able bodied but are still not able to make any earning. This particular fact cannot be over emphasised in context of the economic conditions prevailing in our country which is full of able bodied and educated unemployed in large number. Therefore it cannot be said that merely because a person is able bodied and does not suffer from any physical or mental disability he is always able to earn. Ability to earn requires something more than a fit state of mind and body. It requires opportunity to earn it requires education or experience; it many a times requires finance push and pull. If these are not available to an able bodied person then however capable physically and mentally he may be he should be considered as a person who is not able to earn. It requires opportunity to earn it requires education or experience; it many a times requires finance push and pull. If these are not available to an able bodied person then however capable physically and mentally he may be he should be considered as a person who is not able to earn. The learned Magistrate seems to have incorporated the principle of the liability of an able bodied man to provide maintenance to his dependants; into this qualifying expression unable to maintain herself which is attached to the wifes right to get maintenance. This concept is of course embodied in the expression having sufficient means found used in the main clause of sub-sec. (1) of sec. 125 which says that if a person having sufficient means neglects to maintain his wife and other dependants then he should be ordered to pay the maintenance to them. The expression having sufficient means has got altogether a different connotation from the one contained in the expression unable to maintain. A person who is able bodied and who does not suffer from any physical or mental incapacity can be considered as a person who has got sufficient means because his physical and mental provides him sufficient means to earn. Therefore even if he does not actually earn anything he cannot escape from his liability to maintenance But such a person cannot be considered to be a person who is able to maintain himself unless it is shown that he has got some means of earning. Therefore the concept of able bodied person cannot be imported while interpreting the expression unable to maintain. This position would be clear if we take the contrary case. Suppose there is a person who is not able bodied and who is not either mentally or physically incapable of making any earning but who has yet sufficient income from other sources such as inheritance or past savings. Can it be said with regard to such a person that he or sale is entitled to maintenance because his or her physical condition is such which would not permit him to make any earning. Surely the legislature does not intend to provide to such a person for the simple reason that he is actually found maintenance making sufficient earning to maintain himself or herself. Surely the legislature does not intend to provide to such a person for the simple reason that he is actually found maintenance making sufficient earning to maintain himself or herself. This makes it clear that the expression unable to maintain connotes a situation wherein maintenance is not possible to be obtained by him from any other source. In my opinion therefore the learned Magistrate has wrongly construed cl. (a) of sec. 125 (1) of the Code. ( 6 ) RATHER curiously the learned Assistant Public Prosecutor who appeared on behalf of the State has supported the view taken by the learned Magistrate. I find that if this view is accepted then the whole purpose of preventing vagrancy which is contemplated by sec. 125 of the Code would be lost and there would be husbands who would be encouraged to neglect to maintain their wives at a mature age when inspite of having an able body they would be totally incapable to earn their livelihood. If such neglected wives are not able to seek any employment or to make any earning then their applications would be thrown out simply on the ground that they are found to be possessing a body which is physically fit. In a country which female illiteracy and general unemployment are rampant such a situation would obviously become intolerable and could never have and in a society where economic independence of females is still a rarity been desired by the Legislature which enacted sec. 125 of the Code in its pursuit of an enlightened policy of preventing vagrancy. ( 7 ) IN view of what is stated above the prayer of the petitioner for getting maintenance cannot be rejected on the ground that she is able bodied or that she does not suffer from any physical or mental incapacity. .