ORDER : The petitioner in this application has prayed for setting aside the judgment/order dated 03.02.2003 passed under Section 125 of the Cr. P.C. and confirmed under Section 126(2) of the Cr. P.C. in Misc. Case No. 43 of 2001. 2. Baby Devi filed an application under Section 125 of the Cr.P.C. claiming maintenance on the ground that she is not being maintained by her husband. She further stated that she was married to the opposite party/petitioner. It has been further stated by her that out of the said wedlock there is a minor son. Her further submission is that after marriage for about three years she remained in her in-laws, but, thereafter, she was assaulted and driven out of her matrimonial home. Because of the said torture she had filed a criminal case before the appropriate Court in Banka which was subsequently compromised. She further stated that after the compromise also she was tortured and was not maintained. She claimed that her husband runs a hotel in the local market and also have agriculture property and his income would be Rs. 60,000/- per annum. 3. She had filed this case claiming maintenance on the ground that she is not being maintained by her husband. 4. The opposite party/petitioner appeared before the court below and filed reply. He did not deny the relationship of the husband and wife between the claimants Baby Devi and himself. He also admitted that there is son out of the said wedlock. He stated that in the criminal case he has been acquitted and thus the allegations of torture and the demand of dowry is false. So far as income is concerned the opposite party/petitioner deny that he has any hotel at Panjwara or anywhere. He stated that he is a hawker and is any how managing his livelihood. He further states that he has an old mother to look after, and he is ready and willing to keep his wife and son. 5. On behalf of the claimant, Pradeep Kumar Chani, Narayan Munda were examined as witnesses. Baby Devi has also deposed before the Court. Baby Devi have stated that she was subjected to the torture and thereafter, she was driven out from her matrimonial home. She stated that a criminal case was filed which was compromised, but after compromise also she was again driven out. Baby Devi has also deposed before the Court. Baby Devi have stated that she was subjected to the torture and thereafter, she was driven out from her matrimonial home. She stated that a criminal case was filed which was compromised, but after compromise also she was again driven out. She further stated that the income of her husband is Rs. 60,000/- per annum. 6. The opposite party after filing show cause did not take interest in the case and had not produced any witnesses. 7. The court below after evaluating the materials on record found that the claimant is the legally married wife of the opposite party/petitioner and Mithun Sah is the son who are not being maintained by the father. The court below also found that though the opposite party/petitioner have submitted in the show cause he is ready and willing to keep and maintain the wife and the son, but the said statement has not been supported by any one in the evidence. The court below also found that it cannot be said that the wife have willfully or without any reason have left the matrimonial home. The court below found that on the facts of the case the wife and the child is entitled to be maintained by the husband and thus the ordered of Rs. 500/-is to be paid by the opposite party/petitioner to Baby Devi and Rs. 500/-to Mithun Sah. It has been further ordered that she has to be paid from July, 2001. 8. After the order was passed, an application under Section 126(2) of the Cr. P.C. was filed by the husband stating therein that he went to Kashmir to earn his livelihood and when he returned he came to know that final order has been passed on 03.02.2003. He prayed to recall the said order. He further contended that the order dated 03.02.2003 is an ex-parte order as such the same is liable to be recalled. 9. The court below vide order dated 29.3.2001 has held that the order dated 03.02.2003 is in not an ex-parte order, thus passed an order to comply the final order dated 03.02.2003 passed in Misc. Case No. 43 of 2001 (T.R. Case No. 728 of 2003) under Section 125 of the Cr.P.C. 10. 9. The court below vide order dated 29.3.2001 has held that the order dated 03.02.2003 is in not an ex-parte order, thus passed an order to comply the final order dated 03.02.2003 passed in Misc. Case No. 43 of 2001 (T.R. Case No. 728 of 2003) under Section 125 of the Cr.P.C. 10. Assailing both the orders that the learned lawyer submits that the order is liable to be set aside as the petitioner is ready and willing to keep the wife and there is no cogent reason given by the wife to stay separately. He further submitted that the wife left the matrimonial home without their being any cogent reason. He stated that in fact the wife was annoyed with the expenditure incurred in the treatment of the mother of the husband, as such she left the matrimonial home. He further stated that he went to Kashmir and as such could not attend the proceeding and thus the ex-parte order is liable to be recalled. 11. I have gone through both the orders that is the order dated 03.02.2003 and 28.02.2003. The learned court below has found that the relationship of the husband and the wife is admitted in this case. It is also admitted that Mithun Sah is the son of the opposite party/petitioner. The wife Baby Devi along with Mithun Sah is not residing with the opposite party/petitioner. The reason given by Baby Devi is, because she was subjected to torture, even after compromise of the criminal case, she is residing separately. This reason put forth of the Baby Devi is a cogent reason to stay separately from the husband. The court below also found that the wife i.e. Baby Devi is not in a position to maintain herself and opposite party/petitioner is not maintaining Baby Devi and his son Mithun Sah. 12. After coming to the said conclusion, megre amount of Rs.500/-each has been awarded by the court below to Baby Devi and Mithun Sah, the minor son of opposite party/petitioner. It is well settled proposition of law that the husband is not dissolved from his obligation to provide maintenance. He could not take the plea of financial constraint so long he is healthy, able bodied and is capable to earn. It is well settled proposition of law that the husband is not dissolved from his obligation to provide maintenance. He could not take the plea of financial constraint so long he is healthy, able bodied and is capable to earn. In the instant case the opposite party/petitioner in his show cause has admitted that he is a hawker and he is earning is livelihood by hawking. This clearly goes to show that he is able bodied and is capable to earn. The Court below has correctly granted maintenance in favour of the claimant and her minor son. 13. The petitioner/opposite party has claimed that the order dated 20.8.2003 has been passed ex-parte which needs to be recalled on the ground that he had gone to Kashmir to earn his livelihood. The learned trial court has found that the order is not an ex-parte order rather in the midst of the proceedings, after filing show cause the husband has left taking steps. This clearly suggest that the petitioner was not diligent in pursuing the case. Thus, the court vide order dated 29.2.2003 has rightly dismissed the application under Section 126 (2) Cr. P.C. filed by the husband. 14. I see no illegality or irregularity in the impugned orders, thus this revision application stand dismissed. 15. The petitioner is directed to pay the entire maintenance amount along with arrears to the opposite party as expeditiously.