Judgment : This RPFC is filed U/s 19 of the Family Courts Act against the order dated 09.01.2008 passed in C. Mis. No. 261/2006 on the file of the Judge, Family Court, Mysore, dismissing the petition filed U/s 125 of Cr.P.C. seeking for maintenance Whether the expression ‘unable to maintain herself ’ contained in Section 125(1)(a) of the Cr.P.C. can be equated to the expression ‘capable of earning’ and therefore, in a case where the wife is a holder of a post – graduation degree cannot be said that she is capable of earning and as such, she is not entitled for maintenance. This question has cropped up for an answer in this revision petition filed under Section 19(4) of the Family Courts Act, by the wife calling in question the dismissal of her petition for maintenance, by the trial Court. 2. The facts are not in dispute in as much as the petitioner was married to respondent on 17.08.2005 and thereafterwards, petitioner was not looked after by her husband as was expected of her husband and it is the case of the petitioner that she was left in her parents’ house by her husband and he did not take her to his house and finally the petitioner had to issue a legal notice and though she expressed her willingness to join her husband, the respondent refused to take her and even refused to take her before the conciliation proceedings. Putting all these facts before the trial Court in her petition under Section 125 Cr.P.C., the wife sought maintenance at Rs.7,000/- per month on the footing that her husband is a lecture earning Rs.20,000/- per month and also owns a house. 3. The respondent-husband denied all the allegations made by the wife against him and it was his case that the behaviour of the petitioner was not normal and she herself refused to join the respondent. It is also his case that the petitioner was working as an officer in SBI credit card, earning Rs.6,000/- per month, gave up her job before filing the maintenance petition and it is his further case that his wife being a MBA graduate and also pursuing higher education in Marketing Management, is capable of earning more than Rs.20,000/- per month and deliberately she is not going for work and therefore, the maintenance petition be dismissed. 4. 4. The learned Judge of the Family Court after considering the case of the parties and raising relevant points for consideration and on an appreciation of the evidence placed by the parties, ultimately took the view that the element of ‘ unable to maintain herself’ is very much absent in the instant case and therefore, her petition for maintenance deserves to be dismissed and accordingly, the trial Court dismissed the maintenance petition driving the wife to this Court. 5. The learned Counsel for the petitioner argued that the entire approach of the trial Court was erroneous and the learned Judge did not properly construe the expression ‘ unable to maintain herself and merely because the petitioner has the potential to earn, that itself cannot be taken as a circumstance to hold that the petitioner is able to maintain herself. The trial Court further erred in observing that being an MBA graduate and capable of earning Rs.5,000/- per month as deposed to by the petitioner in her evidence, and the inference that said evidence therefore takes the case out of the purview of Section 125(1)(a), cannot be sustained in law. Apart from this, the further submission made is that the learned Judge of the trial Court was also wrong in making an observation touching upon the human relation aspects and the said observation at para 14 of the impugned order is also uncalled for. 6. In support of his submission concerning interpretation of expression ‘unable to maintain herself’, learned Counsel for the petitioner placed reliance on the decision of the Bombay High Court in the case of Vimal Vs. Sukumar {CDJ 1980 BHC 118} to contend that the expression ‘unable to maintain’ only connotes that wife has no other means or source to maintain herself and it had nothing to do with her potential earning capacity. Learned Counsel also referred to para 15 of the said judgment to drive home the above point. 7. Another decision referred to by him is the one reported in AIR 1989 SC 2374 and referring to said decision it is contended that while considering the petition under Section 125 of the Cr.P.C., the court must not lose sight of Section 18 if the Hindu Adoption and Maintenance Act. Therefore, the learned Counsel argued that the impugned order of the trial Court is liable to be set-aside and the maintenance petition needs to be allowed. 8. Therefore, the learned Counsel argued that the impugned order of the trial Court is liable to be set-aside and the maintenance petition needs to be allowed. 8. On the other hand, learned Senior Counsel Shri Rajendra Prasad for the respondent husband supported the judgment of the trial court with all force and submitted that the trial Court was not in error in holding that the petitioner was capable of earning as she is an MBA graduate and therefore, it is not case which can be brought within the expression ‘unable to maintain herself’. The submission made is that once it is shown from the material on record that wife is capable of earning even according to her own say, that itself is sufficient to hold that it is not a case that comes within the four corners of Section 125(1)(a) of the Cr.P.C. The further submission made is that hardly within two months from the date of marriage, the petitioner left the martial house and filed the petition for maintenance, though she is capable of earning a handsome salary by virtue of her qualification and more over it is a case of such a nature that the wife though capable of maintaining herself does not want to maintain herself and she is not prepared to maintain herself despite possessing an MBA degree. Under these circumstances, the view taken by the trial Court is just and proper and is in accordance with the provisions or the Cr.P.C. The decisions referred to by the learned Counsel for the petitioner are also not applicable to the case as the facts and circumstances are quite different. Therefore, learned Senior Counsel prayed for dismissal of the revision petition. 9. Having thus heard both sides, I now proceed to answer the question that was raised in a very beginning of this order and the said answer would also furnish answer to the merits of this case as well. 10. Section 125 (1)(a) of the Cr.P.C., reads under: “ 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……….” 11. The fate of this petition rest mainly on the interpretation of the expression ‘unable to maintain herself ’. 10. Section 125 (1)(a) of the Cr.P.C., reads under: “ 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……….” 11. The fate of this petition rest mainly on the interpretation of the expression ‘unable to maintain herself ’. A plain reading of the expression keeping in view the meaning assigned to every word that appears in the said expression cannot lead any one to read such expression as to mean ‘capable of earning ‘. In other words, the expression puts the emphasis on the wife being unable to maintain herself and the emphasis is not on the capacity of wife to earn for herself. As such, the potential earning of the wife is not in contemplation in the expression that is found in Section 125 (1)(a) of the Cr.P.C. As rightly argued by the learned Counsel for the petitioner, if the expression ‘unable to maintain herself is to be interpreted as to mean ‘capable of earning’ then the very purpose of introducing Section 125 of the Cr.P.C. will be rendered redundant. This is because it is always possible to say in a given case where the wife seeks maintenance, that she has the potential to earn some thing or that she is capable of earning for herself and if that interpretation is accepted, then it may be possible to reject almost every petition that is filed under Section 125 of the Cr.P.C. and this is not the intention of the legislation. 12. As far as the decisions throwing light on the aforementioned expression appearing in 125 (1)(a) are concerned, in the case reported in 1991 CRL.L.J. 2357,a learned Single Judge of the Allahabad High Court had the occasion to consider the case of a wife who happens to be an educated lady but unemployed and observed that the contention that the wife is an educated lady and can always get employment and can support herself cannot be accepted because it is not disputed that wife is not employed anywhere and has no other means to maintain herself and merely for the fact that a women is educated, she cannot be deprived of her right to get maintenance under Section 125 of the Code of Criminal Procedure. 13. The Apex Court in the case of Rajatha Vs. 13. The Apex Court in the case of Rajatha Vs. Gangha reported AIR 1999 SC 2374 has held that the statement of the wife that that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise and further the court went on to observe that it would also be proper to consider petition under Section 125 of the Cr.P.C. keeping in view the provisions of Section 19 of the Hindu Adoption and Maintenance of Hind wife by her husband during her life time. 14. In the decision referred to by the learned Counsel for the petitioner in the case of Vimal W/O Sukumar Patil Vs. Sukumar Anna Patil and Another, the learned single Judge of the Bombay High Court dealing with the expression ‘unable to maintain herself’ as appearing in Section 125(1)(a) has observed that though the expression is used by he legislature in the negative form, it only connotes that the wife has no other means or source to maintain herself and it has nothing to do with her Potential earning capacity. The Court also observed that if the expression is converted into positive form so as to mean ‘she is otherwise able to maintain herself’ then the whole provision will become unworkable and result in defeating the very object of the legislature and further it will involve an endless enquiry about her physical ability, capacity and opportunities available to her for earning her livelihood and this never was the intention of the legislature. 15. The Bombay High Court in the aforementioned case further went on to observe that the questioned as to whether wife is unable to maintain herself will have to be decided having regard to the facts and circumstances of each case and no general rule can be laid down in this behalf nor it is advisable to lay down any general rule. 16. 16. As far as the contention urged by the learned Senior Counsel Shri Rajendra Prasad for the respondent that Court cannot rewrite the law and it can only interpret the law laid down by the legislature is concerned, there can be no two opinions in this regard and the power to legislate is with the legislature and courts will have to interpret the law and nothing more than that and further Court cannot add or substitute any word into the statute which was not done by the legislature itself. 17. Keeping in view the aforesaid principle of interpretation of statute, in the instant case, as already observed by me earlier, a plain reading of the expression ‘unable to maintain herself’ cannot lead to the meaning ‘Capable of earning for herself’. Therefore, what is not contemplated by the legislature cannot be read into it by the Court. The expression which is under discussion does not take into account the potential earning capacity of the wife but all that it says is that if the wife is unable to maintain herself and if she satisfies other requirement of the Section namely a person having sufficient means neglects or refuses to maintain his wife, the petition by the wife for maintenance cannot be rejected merely on the footing that a wife is capable of earning for herself. 18. This conclusion is also based on the reasoning that though the wife is a highly educated person in a given case and she does not choose to go for work but wants to sacrifice he entire life for the well-being of the family even at the cost of a lucrative job, it cannot be said that in such a case, the wife will not be entitled to maintenance if her husband neglects or refuses to maintain her. As rightly pointed out by the learned Counsel for the petitioner, despite holding a higher educational qualification, it is not incumbent on the part of the wife to go for a job particularly when she is prepared to sacrifice a prospective career for the sake of her family. As rightly pointed out by the learned Counsel for the petitioner, despite holding a higher educational qualification, it is not incumbent on the part of the wife to go for a job particularly when she is prepared to sacrifice a prospective career for the sake of her family. For the above said reasons, the learned Judge of the Family Court was totally in error in dismissing the maintenance petition filed by the wife and, therefore, the matter requires remand to the family Court to work out the amount of maintenance to be paid to the wife based on the evidence appreciation and hence I pass the following order: ORDER The revision petition is allowed and the impugned order of the trial Court is Set-aside and the matter stands remitted to the trial Court to consider the amount of maintenance to be granted to the wife based on the evidence let in by the parties and it is also open to the parties to place further material and in the case of respondent-husband, it is also open to him to place evidence to show that the wife is employed. The trial Court shall also take into account all these factors and dispose of the matter within a period of three months form the date of receipt of a copy of this order and both parties are directed to appear before the trial court on 1.6.2009. One last observation to be made is with regard to opinion expressed by the learned trial judge at para -14 of the impugned order. The court, when called upon to decide a petition under Section 125 of the Cr.P.C. cannot go beyond the scope of the said petition and any observation which of such a nature touching upon the conduct of the parties and which is not a germane to resolve the issue before the Court, therefore will have to be avoided.