Judgment Yadunath Sharan Singh, J. These two criminal revision applications, (Criminal Revision No. 328 of 1982 and 387 of 1982), were heard together and both of them are being disposed of by this common Judgment. 2. Criminal Revision No. 387 of 1982 has been filed by Cbiranjibi Jha, who happens to be the husband of Kanchan Mala Devi, the opposite party in that case. Learned Counsel for Chiranjibi Jha, the petitioner in this case, has not pressed this application. Besides that I have examined the impugned order of this case dated the 1st March, 1982, and, also the lower court records, and. from the order sheet dated the 29th January, 1981, I find that the learned Magistrate had already disposed of the petition said to have been filed by Kanchanmala Devi on the 29th January, 1981, itself. In spite of that, the petitioner, Chiranjibi Jha, has moved this Court against the order of the learned Magistrate dated the 1st March, 1982 in which the learned Magistrate has, in express words, disclosed that the petition dated the 29th January, 1981, alleged to have been filed by Kanchao Mala Devi, was rejected On the 29th January, 1981, itself. It appears that for this reason, the learned Counsel for the petitioner, Chiranjibi Jha, has not pressed this application. Criminal Revision No. 387 of 1982 is accordingly dismissed. 3. Criminal Revision No. 328 of 1982, in which Kanchanmala Devi is the petitioner is an application against the order dated the 10th February, 1982, passed by the Sub-divisional Judicial Magistrate, Bhagalpur, in Miscellaneous Case No. 79 of 1979/Trial No. 937 of 1982, by which the learned Magistrate bas refused to grant maintenance to the petitioner as claimed from her husband Chiranjib Jha the opposite party. 4. The relevant facts, in short, are that this petitioner, Kanchanmala Devi, was married to the opposite party Chiranjibi Jha on the 26th March, 1976. After marriage, the petitioner was brought to her husband's house and she lived there for about 6 months In the meantime the mother of the opposite party died and this petitioner was sent back to her father's place at Village Ishachak, Police Station Mozahidpur, District Bhagalpur and the opposite party never took her back. The father of this petitioner, who is a poor cultivator and bas to maintain his own large family, is unable to maintain her. The father of this petitioner, who is a poor cultivator and bas to maintain his own large family, is unable to maintain her. So she was On the point of starvation, and in that circumstance, she had to file an application under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) against the opposite party for maintenance before the Chief Judicial Magistrate. Bhagalpur on the 11th August, 1979, wherein she stated that she was legally married to the opposite party on the 26th March, 19i6, at Deoghar Temple, and she had lived with the opposite party as wife and husband for more than a year. But thereafter the opposite party was ill-treating her and was not giving her anything, even for her fooding and clothing, although she was on the point of starvation. In her petition for maintenance, she stated that the opposite party had illicit connections with a School teacher, named Sharda Devi, and, for that reason, he was not taking any care of his legally married wife, this petitioner. Further, she has stated in her petition that the opposite party is a senior Advocate of the Civil Court and his income from the profession is not less than Rs.1,000/- per month, besides other income from agriculture and house rent, etc. 5 The opposite party was summoned and he filed a show cause, denying all the allegations including the factum of his marriage itself with the petitioner. 6 Learned Judicial Magistrate, after considering the materials on the record and the evidence of the witnesses, examined in the case, granted a maintenance of Rs.200/- per month to the petitioner against the opposite party by his order dated the 3rd October, 1980. 7. Against the aforesaid order, the opposite party came to this Court in Criminal Revision No 1155 of 19110, and, this Court, by an order dated the 23rd September, 1981, set aside the order of maintenance, and sent back the case to the learned Magistrate for reconsideration on the materials already on the record and then to pass orders in accordance with law. While remanding the case, this Court desired the learned Magistrate to specifically record findings on the following three points, before passing appropriate orders in the case : (i) Whether there was valid marriage between the parties; (ii) What was the income of the opposite party and what amount, if any, Kanchanmala would be entitled to get as maintenance; and, (iii) Whether, Kanchanmala is in a position to maintain herself? 8. On remand, the learned Magistrate heard the parties again and by his order dated the 10th February, 1982, rejected the petition of the petitioner for maintenance, mainly on the ground that she failed to prove that she could not maintain herself. On the points formulated, as aforesaid, the learned Magistrate came to the following findings :- (i) The marriage of the petitioner Kanchan Mala with the opposite party Chiranjibi Jha, is a valid marriage. (ii) The opposite party has an income of Rs.1,000/- per month. (iii) Kanchanmala is unsuccessful to prove that she cannot maintain herself. Against this order, the petitioner, Kanchan mala, has come to this Court in revision. 9. Learned Counsel appearing for the petitioner, Kanchan Mala Devi, has submitted that when the two points have been found in favour of the petitioner, the finding on the third point that there is no evidence that she cannot maintain herself is not sufficient to hold that she can maintain herself. Further, the learned Counsel has submitted that the evidence of the father of the petitioner that he is unable to maintain Kenchan Mala Devi is sufficient to hold that Kanchanmala is unable to maintain herself, as she has to depend upon her father. Further, learned Counsel has submitted that in Paragraphs. Nos. 9 and 12 of the petition filed before the learned Magistrate for grant of maintenance, under the provisions of Section 125 of the Code, the petitioner, Kanchanmala Devi, has stated that she has become a miserable helpless lady and has fallen a burden to her poor father, and has placed before me the aforesaid two paragraphs, which are quoted here-in-below :- "9. That the petitioner's father is a marginal cultivator and he has been feeling very hard to maintain her when he himself has a big family to maintain over and above two unmarried daughters as dependents" "12. That the petitioner's father is a marginal cultivator and he has been feeling very hard to maintain her when he himself has a big family to maintain over and above two unmarried daughters as dependents" "12. That after sending the petitioner to her parent's house and as the Opposite Party is not maintaining her, the petitioner is at the point of starvation, because of the fact that the income of her parents is not sufficient to meet her expenses" 10. Learned Counsel for the petitioner further read to me the relevant portion of the evidence of Kanchan Mala (P.W. 12), where she has described herself as 'Ashrit' (dependent), and has also read her evidence where she has stated that her father has no means to keep her with him and to feed and, in the circumstances, being put in helpless position she had to file the Case. The evidence of the father of the petitioner Neelmani Jha (P.W. 11), has also been placed before me, where he has stated that because of failure of the crops for three consecutive years, he was also in troubles. Learned Counsel has submitted that the learned court below has tried to consider that the financial condition of the father was good, without applying his mind to the legal aspects of it, that the father has no liability to maintain his married daughter. 11. Learned Counsel for the petitioner while summarising his arguments has submitted that the petitioner, Kanchanmala Devi has already made her statement in her petition before the learned Magistrate that she was dependent and she had no means, but to depend upon her father for her clothing and fooding she bas stated in her petition to the extent that her condition has reduced to the point of starvation even and that being in helpless condition she had to take recourse to legal action against the opposite party. Learned Counsel submitted that this is sufficient material to discharge the onus of the petitioner to prove that she is the legally married wife of the opposite party and is unable to maintain herself. 12. Learned Counsel submitted that this is sufficient material to discharge the onus of the petitioner to prove that she is the legally married wife of the opposite party and is unable to maintain herself. 12. Learned Counsel for the petitioner has also referred to the evidence and the pleadings of the opposite party himself, and has submitted that even in the written statement the opposite party bas nowhere said that the petitioner is either literate or illiterate, or whether she is employed or unemployed, or whether she can maintain herself through her own sources, or not. In the circumstances of this case, where on the materials referred to above the petitioner has discharged the initial onus, it was incumbent upon the opposite party to bring forth materials on the record to show that she is in a position to maintain herself. On the materials learned Counsel for the petitioner has submitted that in the instant case, which is a case of a respectable lady, her husband being an affluent person, holding a position in the society, being an Advocate, this Court should consider the materials in the case and see, whether the finding that there is no evidence to show that she cannot maintain herself is justified or not. In this connection, learned Counsel for the petitioner has referred to a Division Bench decision of the Karnataka High Court, in the case of Malan vs. Baburao and read to me the relevant portions of the judgment, where their Lordships have explained the scope of Section 125 of the Code. I would like to reproduce some relevant portions of the same here in below:- "22. Section 125 of the new Code does not require that the wife should plead in her petition that she is unable to maintain herself. The relief given under Chapter IX of the new Code may be said to be of civil nature in view of the decision in Nondlal Vs. Kanhaiyalal. The enquiry under Chapter IX of the new Code may be said to be of a quasi criminal One in view of the decision in Dr. T. K. Thayumanuvar Vs. Asanambal Ammal. But, the fact that the said petition has to be decided in accordance with the procedure laid down in Chapter IX of the new Code, which is self contained, cannot be disputed. T. K. Thayumanuvar Vs. Asanambal Ammal. But, the fact that the said petition has to be decided in accordance with the procedure laid down in Chapter IX of the new Code, which is self contained, cannot be disputed. If that is so, the strict rules of pleadings applicable to the pleadings in a civil suit cannot be applied to a petition under Section 125 of the new Code. Hence, merely because the wife has not averred in her petition that she is unable to maintain herself her petition cannot be dismissed. It is for both the parties to adduce evidence on, that point and it is for the court to decide whether the wife is able or unable to maintain herself." "23. On a reading of Section 125 of the new Code, it is clear that the wife is only required to prove neglect, or refusal by the husband. That is also the view taken by the Supreme Court in Bai Tahira Vs. Ali Hussain Fissallia Chothia. In that case it is observed thus : "Section 125 requires as a sine qua non for its application, neglect by husband or father. The Magistrate's order proceeds on neglect to maintain the Sessions Judge has spoken nothing to the contrary and the High Court bas not spoken at all. Moreover, the husband has not examined himself to move that he has been giving allowance to the divorced wife. His case, on the contrary, is that she has forfeited her claim, because of divorce and the consent decree. Obviously, he has no case of non-neglect. His plea is his right to ignore. So the basic condition of neglect to maintain is satisfied. His case, on the contrary, is that she has forfeited her claim, because of divorce and the consent decree. Obviously, he has no case of non-neglect. His plea is his right to ignore. So the basic condition of neglect to maintain is satisfied. In this generous jurisdiction a brother perception and appreciation of the facts and their bearing must govern, the verdict not chopping little logic or tinkering with burden of proof" Hence, we are clearly of the view that instead of the wife providing the negative it is for the husband to prove that the wife is able to maintain herself as it is a defence open to him" In this case, the Karnatak High Court has decided that it is not only for the wife to prove that she is unable to maintain but it is for both the parties to adduce evidence on that point and it is for the court to decide, whether the wife is able or unable to maintain herself. 13. Learned Counsel appearing for the opposite party has submitted that one of the ingredients of Section 125 of the Code to allow maintenance to the wife, would be to prove that the claimant wife is unable to maintain herself and in that respect a finding has been arrived at by the court below that the claimant wife is unsuccessful to prove through evidence that she is not able to maintain herself and on that account the submission has been made that the order of the court below is fully justified and is in accordance with the law which needs no interference by this Court 14. Further learned Counsel for the opposite party has cited a single Judge decision reported in 1978 Cr. L.J. 1555 (Karnataka) where it has been held that the claimant wife under the provisions of Section 125(1)(a) of the Code is to state in her Case clearly that she is unable to maintain herself. But, in that Case it was not so pleaded in the petition and the opposite party himself in his statement of objection bad no occasion to meet that point and in a similar circumstance, be has cited another single Judge decision (Haunsabai us. Balkrshna Badiger). But, in that Case it was not so pleaded in the petition and the opposite party himself in his statement of objection bad no occasion to meet that point and in a similar circumstance, be has cited another single Judge decision (Haunsabai us. Balkrshna Badiger). In this case also the learned Judge bas explained the expression 'unable to maintain', used in Section 125 of the Code and has stated that the Legislature in its wisdom has inserted this expression with purpose and this claim of maintenance of a wife under Section 125(1)(8) of the Code can be given only to a wife who is unable to maintain. Further, learned Counsel for the opposite party has cited a Division Bench decision of this Court in the case of Mohammad Zahi, vs. Rokshana & others' in which the main question which was pressed in this case was that the court below had not taken into account either the means of the wife or her ability to maintain herself In answering this question, their Lordships have decided that by giving relief to the wife under the provisions of Section 125 of the Code, the condition precedent would be to establish on fact that the wife is unable to maintain herself. To quote- “Accordingly it must be held that a wife in order to succeed in her claim for maintenance against her husband must first establish that she is unable to maintain herself. Once this fact is established like a condition precedent only then the court has to see as to what amount should be allowed as maintenance and in determining this issue be has to consider the means of the husband the income of the wife and other surrounding circumstances. Further, their Lordships have quoted the facts of that case also where it is stated: "The wife in her application simply alleged that she was not being maintained by the husband without, however stating as to whether she herself was unable to maintain herself." On these submissions, learned Counsel has submitted that this is a fit Case to be dismissed. 15. So far as these two single Judge decisions of the Karnatak High Court cited by learned Counsel for the opposite party, are concerned, that Court had itself considered those decisions in its larger Bench decision reported in 1981 Cr. L.J. 184, as mentioned above. 15. So far as these two single Judge decisions of the Karnatak High Court cited by learned Counsel for the opposite party, are concerned, that Court had itself considered those decisions in its larger Bench decision reported in 1981 Cr. L.J. 184, as mentioned above. However, our own High Court, sitting in a Division Bench, had decided this point. But, I find, there are some distinguishing features, in the instant case and the case before the Division Bench of this Court. In the case before the Division Bench of this Court which. I have quoted above, the wife had simply alleged that she was not being maintained by her husband. She had not mentioned any where that she was unable to maintain herself. But, in the instant case, looking to the two paragraphs of the petition filed by the petitioner it is obvious that the wife, though had not stated in the petition that she was not able to maintain herself, but had clearly expressed in the statement that her father is not in a position to maintain her and she has to starve and in her statement also she has stated that she is dependent on her father though her father had no responsibility to maintain her. 16. These facts lead us to the conclusion that she is not in a position to maintain herself, and, on the facts and in the circumstances of this case, I do not agree with the finding of the court below that the petitioner has failed to prove that she cannot maintain herself. The materials available on the record of the case, which I have looked into myself along with the Advocates for both the parties, since there is already a finding that she was the legally married wife of Chiranjibi Jha (opposite party) and that the opposite party had a monthly income of Rs.1000/- from his profession and, on my finding that she is unable to maintain herself, in accordance with the provisions under Section 125 of the Code she deserves maintenance from the opposite party, who is the legally married husband of the petitioner. In the circumstances, I set aside the order of the, court below dated the 10th February, 1982, so far as it holds that the petitioner has railed to prove that she cannot maintain herself, and I hold that she is entitled to get maintenance at the rate of rupees two hundred per month from the date of her application i.e. the 11th August, 1979. I direct the opposite party to pay to her the arrears and the current maintenance, as directed above Cr. Rev. 367/82 dismissed. Cr. Rev. 328/82 Allowed.