ORDER 1. The petitioner/husband has projected the instant Criminal Revision Petition as against the order dated 21.7.2011 in M.C. No. 29 of 2007 passed by the Learned Judicial Magistrate, Tiruchendur. 2. The Learned Judicial Magistrate, Tiruchendur, while passing the order in M.C. No. 29 of 2007 on 21.7.2011 has inter alia observed that “the Respondent (Revision Petitioner) is running a provision store and in the said shop, he is selling Beedi, Cigarettes, Cool Drinks, Note Books, etc., and through this business, he is earning adequate income to pay the maintenance amount to the Petitioner (respondent/wife) and consequently, directed the Respondent/Husband (Revision Petitioner) to pay a sum of Rs. 2,000/- as monthly maintenance amount to the Petitioner/Wife (Respondent before this Court) and the said amount is to be paid either directly or through Court on or before 5th of every month. 3. Being dissatisfied with the order passed by the Learned Judicial Magistrate, Tiruchendur in M.C. No. 29 of 2007 dated 21.7.2011, the Revision petitioner/husband, as an aggrieved person has projected the present Criminal Revision Petition before this Court. 4. The Learned counsel for the petitioner/husband, urges before this Court that the trial Court has failed to apply the ingredients of Section 125 of the Criminal Procedure Code to find out as to whether the respondent/wife is entitled to maintain her and failure to consider the same vitiates the order in entirety. 5. It is the further submission of the Learned counsel for the Petitioner that the respondent/wife as P.W.1 (Petitioner in M.C. No. 29 of 2007) has stated that she is not inclined to live with the Revision petitioner/husband for want of amenities in the matrimonial home as desired by her. 6. Advancing his arguments, the Learned counsel for the petitioner/husband strenuously contends that the petitioner/husband has provided the respondent/wife a separate residence and just because no separate toilet has been provided in the hut and also that there has been no electric fan in the hut, the respondent/wife has chosen to live separately from the petitioner/husband. But, these vital aspects have not not been taken into account by the trial Court at the time of passing the impugned order. 7. But, these vital aspects have not not been taken into account by the trial Court at the time of passing the impugned order. 7. According to the Learned counsel for the petitioner/husband, the petitioner/husband is a handicapped person, unable to earn on account of the inabilities on his body, but the trial Court has gone to the extent that the respondent/wife is entitled to be maintained by him. 8. Yet another submission of the Learned counsel for the Petitioner is that the trial Court has not at all discussed about the evidence of the Revision petitioner/husband as R.W.1 and also the supportive evidence from his matrimonial aunt as R.W.2 to speak about the facts. 9. In any event, the trial Court has not determined any income of the petitioner/husband from his Petty Shop and without determining his monthly income, it is not proper for the trial Court to award maintenance to the respondent/wife and that too at the rate of Rs. 2,000/- p.m. 10. Per contra, it is the submission of the Learned counsel for the respondent/wife that the petitioner/husband is duty bound to maintain the respondent/wife and the Petitioner is running a provision store and in-law, he is bound to maintain the respondent/wife without offering any lame excuses one way or other. 11. The Learned counsel for the respondent/wife draws the attention of this Court to M.P.(MD) No. 1 of 2011 in Crl.R.C. (MD) No. 755 of 2011, wherein this Court on 20/10/2011, has passed an order of interim stay by directing the Petitioner to pay 50% of the arrears maintenance and also the regular maintenance as determined by the Court below and the said 50% of arrears is to be paid by the Petitioner on or before 14.11.2011, etc., and in this regard, the petitioner/husband has paid 50% of arrears of maintenance ordered, but he has not fully complied with the conditional order by not paying the maintenance amount regularly and in the present case, the trial Court has taken into account all the facts and circumstances in an integral fashion and has rightly awarded the monthly maintenance of Rs. 2,000/- p.m., from the date of filing of the Petition, which need not be interfered with by this Court at this distance point of time. 12. 2,000/- p.m., from the date of filing of the Petition, which need not be interfered with by this Court at this distance point of time. 12. The Learned counsel for the respondent/wife cites the decision of this Honourable Supreme Court in Saygo Bai v. Chueeru Bajrangi 2011 Crl.L.J 1007, wherein it is observed that “wife has very specifically stated that she was thrown out of the matrimonial house on account of second wife and held that the Husband must be earning at least Rs. 10,000/- p.m., presently as salary being a Constable in Police Force and also has other sources of income as agricultural properties and awarded maintenance at the rate of Rs. 1,500/- p.m., in favour of the wife as proper maintenance.” 13. That apart, the Learned counsel for the petitioner/husband submits that the respondent/wife is working as a Contract Beedi Worker and daily earns a sum of Rs. 150/- p.m., and further in H.M.O.P. No. 911 of 2008 on the file of the Family Court, Coimbatore, the petitioner/husband has obtained a Decree of Divorce on 14/8/2009 against the respondent/wife and as such, the petitioner/husband is not liable to pay monthly maintenance to the Respondent. 14. Another contention put forward on the side of the petitioner/husband is that the petitioner/husband is a Handicapped person and a plate has been fixed on his legs and apart from running a provision store business, he is maintaining himself and therefore, in any event, the award of monthly maintenance amount of Rs. 2,000/- by the trial Court from the date of filing of the maintenance application does not stand a moment’s scrutiny in the eye of Law. 15. Countering the contentions of the Learned counsel for the petitioner/husband, the Learned counsel for the respondent/wife submits that the marriage between the parties has taken place at Tiruchendur and a divorce proceeding in H.M.O.P. No. 911 of 2008 has been initiated before the Family Court, Coimbatore. But, the maintenance case M.C. No. 29 of 2007 has been pending on the file of the Learned Judicial Magistrate, Tiruchendur and in fact, the Ex parte Decree of Divorce obtained by the petitioner/husband against the respondent/wife is without jurisdiction and as such, the same is nonest in Law. 16. But, the maintenance case M.C. No. 29 of 2007 has been pending on the file of the Learned Judicial Magistrate, Tiruchendur and in fact, the Ex parte Decree of Divorce obtained by the petitioner/husband against the respondent/wife is without jurisdiction and as such, the same is nonest in Law. 16. The respondent/wife in her evidence as P.W.1 before the trial Court has stated that the marriage between her and the Revision petitioner/husband has taken place on 7.7.2006 as per Hindu Customs and that 18 sovereigns of jewels, Rs. 21,000/- in cash and articles worth about Rs. 15,000/- have been given to her at the time of marriage and after marriage, her husband has taken her to Devarapalayam, where he has been running a provision store and there, she resided with her Husband and Mother-in-Law, used to scold her in filthy language that she is not able to prepare food and her husband asked her to put a signature in a blank paper and if she does not do the same, then he threatened her by saying, ‘he will pour kerosene on her and burn’ and during March 2007, her Husband and Mother-in-law have driven her out of the house to go to her father’s house. 17. It is the further evidence of P.W.1 (wife) that with the help of her matrimonial mother’s son, Selvakumar at Coimbatore, she has come to her father’s house and again her father brought her back for joining with her husband but he refused and later on 8/6/2007, she has lodged a complaint at Tiruchendur All Women Police Station bearing Petition No. 131 of 2007 and for the enquiry by the Police, her husband has been present and her husband informed that at Devarapalayam at Coimbatore, he will run a separate family and in that place at Shyamalapuram, her husband has arranged for her residence along with his mother and in that house, there is no toilet and in the said hut house, there is no Electricity Supply etc. 18. 18. Continuing, it is the deposition of P.W.1 that on 3.10.2007, her mother-in-law and her husband informed her that if she resides in that house, she cannot see another girl for her son viz., the husband and if she remained in the house, her husband informed he will beat and murder her and also asked her to remain at her father’s house and if she comes to Coimbatore, again, he will be beat and drive her back once again and she informed these matters to one Paulmani (her relative) who informed her father and her father has taken her back to his house. Moreover, she has spoken to her husband over phone but he has not spoken to her and she is now presently residing in her father’s house and that her husband has neglected to maintain her and she has no income. Also, she is not doing any work and her father is aged and sick and that her Husband (Revision Petitioner) has 1/4 acres of Nanja land valued about Rs. 2 lakhs and her husband used to get income of Rs. 18,000/- and that she requires a sum of Rs. 3,000/- as maintenance towards her medical expenses, food expenses, clothes and transportation expenses. 19. As a matter of fact, P.W.1 (Wife) has specifically denied that she only got separated from her Husband. 20. P.W.1/Wife (in her cross-examination) has deposed that she does not know her Husband’s deficiencies in hands and legs and further, she does not know her Husband has performed a surgery on his left leg and also she has denied a suggestion that only she picked up a quarrel and has gone to her parent’s house. Added further, she has denied specifically, the suggestion of her husband that she is doing Beedi scrolling work daily and getting an income of Rs. 100/-, 150/-. 21. It is the evidence of R.W.1 (Husband) that Exhibit R-1 is the Marriage Invitation to show that the marriage has taken place between him and his wife on 7.7.2006. Exhibit R-2 is the Accident Certificate given to him in respect of the injury sustained by him on his leg and Exhibit R-3 is the Petition filed by him before Coimbatore Family Court seeking divorce from his wife. 22. Exhibit R-2 is the Accident Certificate given to him in respect of the injury sustained by him on his leg and Exhibit R-3 is the Petition filed by him before Coimbatore Family Court seeking divorce from his wife. 22. The evidence of R.W.1 is to the effect that his wife after the marriage wanted him to follow her way and also stated that his mother should not be with him and since he refused to accede her request, she picked up a quarrel and left the house and again after coming and joining with him, within ten days, she used to pick up a quarrel and go back to her parents house and before Tiruchendur All Women Police Station, compromise talks were held and they have been sent out and further she threatening by saying that if he fails to follow her way, she would commit suicide and she earns daily a sum of Rs. 100/- by doing work and he is in a position to pay maintenance as claimed by her and that his aunt has given a petty shop to him and only with hard work, he has to earn his food and that through Sangam, he has handed over all the jewels of his wife’s. 23. In Exhibit R-4, the respondent/wife has signed in the receipt for taking back the jewels and he has also signed in the said document. 24. The evidence of R.W.2 is to the effect that R.W.1 (Revision petitioner/husband) is having a small petty shop in which he daily earns an income of Rs. 50/- and his maternal aunt has given the petty shop to him and that the shop has to be given back to R.W.1’s aunt when she makes a demand in this regard. 25. Significantly, R.W.2, in his evidence has admitted that at Shyamalapuram, the house of the Revision petitioner/husband is a thatched hut and in the said hut, there is no electricity supply and when they called P.W.1 (respondent/wife) to live with the Revision petitioner/husband, she has refused to live with him. 26. It is to be pointed out that the obligation to maintain the respondent/wife is on the Revision petitioner/husband. If the Petitioner/Husband has/having sufficient means and neglected to maintain his wife or child, then, he is liable to pay maintenance, as opined by this Court. The Husband need not starve himself in order to maintain his wife. 26. It is to be pointed out that the obligation to maintain the respondent/wife is on the Revision petitioner/husband. If the Petitioner/Husband has/having sufficient means and neglected to maintain his wife or child, then, he is liable to pay maintenance, as opined by this Court. The Husband need not starve himself in order to maintain his wife. It cannot be said that just because a person is able bodied and does not suffer from any physical or mental ability, he is always able to earn. Ability to earn requires something more than a fit state of mind or body. It requires an opportunity to ‘Earn’, ‘Education’ or ‘Experience’ etc. 27. Admittedly, the Husband cannot refuse to maintain his wife on the ground that he has no sufficient means. It is true that capacity/capability of the petitioner/husband to pay must be established to determine the quantum of maintenance. The Magistrate must discuss the evidence and come to the conclusion as to the means of the Husband for determining the amount of maintenance. Significantly, ‘maintenance’ means not only the tangible property or sources of income of the Husband, but also mean his capacity, potentiality and status. A person’s health and able body should be taken to have means to support his wife. As a matter of fact, an insolvent or a monk is to support his wife so long as he is able bodied and can eke out his livelihood. Once an individual has capacity to earn, then his liability to maintain as per Section 125 of Cr.P.C., arises. Indeed, sufficient means is not confined to pecuniary resources. The presumption is that an able bodied health person is possessed of sufficient means and onus is on him to prove that by accident, possess or the conditions of labour marked or otherwise, he is not capable of earning anything as per decision in Chander Prakash v. Shila Rani AIR 1968 Del 174 . One cannot ignore an important fact that ‘Refused to Maintain’ means a failure to maintain or a denial of obligation to maintain after demand. 28. Per contra, ‘neglect’ means a default or omission, in the absence of demand. Neglect or refusal may be implied from conduct of a party and there need not be a formal refusal as per decision in Narayan Sahu v. Sushama Sahu 1992 Crl.L.J 2912 . 29. 28. Per contra, ‘neglect’ means a default or omission, in the absence of demand. Neglect or refusal may be implied from conduct of a party and there need not be a formal refusal as per decision in Narayan Sahu v. Sushama Sahu 1992 Crl.L.J 2912 . 29. At this stage, this Court cites the following decisions to promote substantial cause of justice. In the decision in Captain Ramesh Chander Kaushal v. Ms. Veena Kaushal and Others (1978) 4 SCC 70 , wherein at page 71, it has held that “The maintenance fixed by the Civil Court under Section 24 of the Hindu Marriage Act, pending divorce proceedings by wife, held, has no relevance for fixation by Magistrate of maintenance under Section 125 of the Criminal Procedure Code.” 30. In the decision in Bai Tahira v. Ali Hussain Fissalli Chothia and Another AIR 1979 SCC 362 , wherein at page 363, it has held thus:- “On a simple reading of the Explanation (b) to Section 125 (1) of the Code, it is clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the current code.” 31. In the decision in Shri Bhagwan Dutt v. Smt.Kamla Devi and Another 1975 (2) SCC 386 , wherein at page 387, it has inter alia held as follows:- “Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances. The use of word “may” in Section 488 (1) indicates that the power conferred on the Magistrate is discretionary. A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband. Of course, the Magistrate has to exercise the discretion in a judicial manner consistently with the case. Nevertheless, the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision. Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive.” 32. Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive.” 32. Also, it has observed that “In determining the amount of maintenance under Section 488 (1) of Cr.P.C., the Magistrate is competent to take into consideration his separate income and means of the wife.” 33. In the present case on hand, the respondent/wife has taken back the jewels as per Exhibit R-4 Receipt dated 4.8.2007. Further, it transpires from the evidence of R.W.1 (Husband) that the respondent/wife has desired to lead a separate/independent family, de hors her mother-in-law. In regard to the allegation of the threat made by the petitioner/husband and her mother-in-law that if she continued to remain in her husband’s house, they could not see another girl for the petitioner. Moreover, her husband threatened to beat her and drive away from the house. Except Ipse Dixit of the respondent/wife, in this regard, there is no acceptable and satisfactory documentary evidence on her side to prove the said allegation. Her oral evidence is also not corroborated by any other documentary evidence in the considered opinion of this Court. As such, this Court comes to an inevitable conclusion that the respondent/wife has failed to establish her allegations of threat made by the petitioner/husband and mother-in-law. As such, her evidence in this regard is not accepted by this Court. 34. Moreover, R.W.1, in his evidence in cross-examination has clearly admitted that the house in which he has asked the respondent/wife to reside with him is a thatched one, having no facility of Electricity Supply and a Toilet and also that he used to visit her weekly once and has given money for her expenses. Also that he has tacitly admitted in clear terms that he does not know the details whether the respondent/wife has taken bath or taken food etc. Therefore, it is quite clear that the Revision Petitioner has neglected to take care of the respondent/wife and has not evinced interest about her daily needs/welfare. Obviously, the petitioner/husband has not performed his matrimonial duty of attending to the needs of the respondent/wife in this regard. 35. Therefore, it is quite clear that the Revision Petitioner has neglected to take care of the respondent/wife and has not evinced interest about her daily needs/welfare. Obviously, the petitioner/husband has not performed his matrimonial duty of attending to the needs of the respondent/wife in this regard. 35. A perusal of the counter to M.C. No. 29 of 2007 (filed by the petitioner/husband) shows that in paragraph 5 he has clearly stated that “with a meagre earned salary of Rs. 750/-, he has lived in odd moments with the Petitioner (Wife is earning a salary of Rs. 150/-). Although a plea has been taken on behalf of the Revision petitioner/husband that the respondent/wife is doing a contract beedi work and daily earns a sum of Rs. 150/-, that has been specifically denied by the respondent/wife in her evidence before the trial Court and here again except the oral version of R.W.1 (Husband) that the wife earns daily a sum of Rs. 150/- from her beedi coolie work. There is no acceptable satisfactory evidence on his behalf to establish the earning of the respondent/wife of Rs. 150/- daily and as such, this Court holds that the petitioner/husband has not proved his case that his wife is earning a sum of Rs. 150/- daily from beedi coolie work daily. 36. In this connection, it is relevant for this Court to point out that it is the duty of the Magistrate while passing a final order of maintenance to pass a speaking/reasoned order by discussing the oral and documentary evidence adduced by the parties in a dispassionate manner and to arrive at a final conclusion. At least, an out line of process of reasoning must be evident from the order passed by the Magistrate by discussing the evidence adduced by the parties in a panoramic spectrum, as opined by this Court. Also that, the position of Law is that the burden shifts on the husband when the circumstances show that the wife is unable to maintain herself. The jurisdiction of the Magistrate to award maintenance under Section 125 of Cr.P.C., is more in the nature of prevention than remedial or punitive action. It is true that no maintenance in the absence of proof of neglect, refusal or having a second wife. 37. The jurisdiction of the Magistrate to award maintenance under Section 125 of Cr.P.C., is more in the nature of prevention than remedial or punitive action. It is true that no maintenance in the absence of proof of neglect, refusal or having a second wife. 37. In the present case on hand, the Learned counsel for the respondent/wife submits that the Revision petitioner/husband is trying to go in for second marriage after obtaining an ex parte decree of divorce on the ground of desertion in H.M.O.P. No. 911 of 2008 dated 14.8.2009. In fact, Section 125 of Cr.P.C., proceedings, the jurisdiction is generous and the appreciation of facts must have an over all bearing and must govern the final decision in regard to the award of maintenance to the affected litigant. Ordinarily, the Wife is entitled to 1/5th to 1/3rd of the income of the Husband as maintenance. At the risk of repetition, this Court points out that the petitioner/husband has not established satisfactory that the respondent/wife has sufficient means to maintain herself and even her independent earning as alleged by him has not been proved, to the subjective satisfaction of this Court. When wife is entitled to maintain herself then certainly, the petitioner/husband is liable to pay a monthly maintenance to her. Even though in the impugned order in M.C. No. 29 of 2007 dated 21/7/2011, the trial Court has not in detail and qualitative fashion discussed about the deposition of the Revision petitioner/husband (as R.W.1), yet, the same will not preclude this Court in considering the entire oral and documentary evidence on record in a threadbare and appropriate fashion and accordingly, this Court decides the quantum of maintenance to be awarded. 38. Also, when a husband treats the wife cruelly or when he harasses her mentally or otherwise or when he contracts a second marriage, then the first wife inter alia is entitled to live separately. It is to be noted that the Application/Petition for maintenance under Section 125 of Criminal Procedure Code is not to be verified like civil proceedings. Even a divorced woman is entitled to claim maintenance. The term ‘wife’ includes divorced wife. On the side of the Revision petitioner/husband, Exhibit R-2, Discharge Summary has been filed before the trial Court. It is to be noted that the Application/Petition for maintenance under Section 125 of Criminal Procedure Code is not to be verified like civil proceedings. Even a divorced woman is entitled to claim maintenance. The term ‘wife’ includes divorced wife. On the side of the Revision petitioner/husband, Exhibit R-2, Discharge Summary has been filed before the trial Court. A perusal of the same shows that the Revision Petitioner has been diagnosed with “open communited fracture of right Tibia: upper/3 Middle/3 Junction” and he has been admitted into Sri Ramakrishna Hospital on 3.8.2004 and later, he got discharged during August 2004. Further, the Petitioner has been directed to go for follow-up treatment/Review and he has attended on different difficulties. Even though the Petitioner has orthopaedic ailments as seen from Exhibit R-2, yet the fact remains that he is running a provision store wherein also Cool Drinks, Note Books are being sold. It is a specific evidence of respondent/wife as P.W.1 that the petitioner/husband gets a monthly income of Rs. 18,000/-. But, the petitioner/husband as stated in his counter to M.C. No. 29 of 2007 that he gets a meagre amount of Rs. 750/- from the petty shop business he runs. 39. In this connection, this Court points out that the affidavit in M.P.(MD) No. 1 of 2012 in M.P.(MD) No. 1 of 2011 in the present Criminal Revision Petition, the respondent/wife (as Petitioner) has stated that the Revision petitioner/husband is leading a luxurious life, running a provision store at Coimbatore and earning at present a sum of Rs. 30,000/- p.m. 40. Suffice it for this Court to point out that on the basis of facts and circumstances, this Court comes to an inevitable conclusion that the petitioner/husband runs a provision store and even though there is no exact or documentary proof to show the real monthly income of the petitioner/husband from the provision store business, yet taking note of the fact that he runs a provision store and also sells Note Book and Cool Drinks etc., and further bearing in mind of another important fact that he has 1/4 acres of Nanja land valued about Rs. 2 lakhs, etc., this Court holds that he is a man of sufficient means and in any event, it can safely be concluded notionally that he will earn not less than Rs. 2 lakhs, etc., this Court holds that he is a man of sufficient means and in any event, it can safely be concluded notionally that he will earn not less than Rs. 15,000/- p.m., and viewed in that perspective, this Court directs the petitioner/husband to pay a just and equitable sum of Rs. 1,500/- towards maintenance of the respondent/wife, (so as to keep her body and soul together) from the date of filing of M.C. No. 29 of 2007 on the file of the trial Court (notwithstanding the fact that he has obtained an Ex parte decree in H.M.O.P. No. 911 of 2008. Incidentally, as per Section 127 of Cr.P.C., divorce per se is not a ground for alteration in maintenance allowance and a decree of divorce obtained by him on the ground of desertion in law cannot affect the order of maintenance under Section 125 of Cr.P.C. Further, after adjusting 50% of the arrears of maintenance paid by the petitioner/husband as per order by this Court in M.P. No. 1 of 2011 dated 20.10.2011, the petitioner/husband is directed to pay the remaining amount till the respondent/wife gets married, as per decision in T. Raja Rao v. T.Neelamma and Others 1990 Crl.L.J – 2430 A.P. Added further, the petitioner/husband is directed to pay the entire arrears of maintenance amount to the respondent/wife from the date of filing of the M.C Petition till date at the rate of Rs. 1,500/- p.m., as stated supra, (after adjusting the amount paid) within a period of six weeks from the date of receipt of the order either directly to the wife or to deposit the same to the credit of M.C. No. 29 of 2007 on the file of the trial Court. In any case of amount being deposited to the credit of M.C. No. 29 of 2007 on the file of the trial Court, it is open to the respondent/wife to file necessary application for payment out and seek remedy in the manner known to law. 41. With these above directions, the Criminal Revision is partly allowed and disposed of. Consequently, the connected Miscellaneous Petition (MD) Nos. 1 of 2011 and 1 of 2012 are closed. Ordered accordingly.