JUDGMENT
D.M. Dharmadhikari, J.
1. This revision is directed against the order dated 6-11-1989 of the Additional Sessions Judge, Dindori, whereby the case between the parties for grant of maintenance under Section 125 of the Code of Criminal Procedure has been remanded to the Judicial Magistrate First Class for retrial. The non-applicant No. 1 is the wife of the applicant and the non-applicant No. 2 to 5 are their minor children.
2. A joint application was filed by the wife and the minor children for grant of maintenance in their favour under Section 125 of the Code of Criminal Procedure. The Trial Magistrate by order dated 11-2-85 dismissed the application of the wife as also of the minor children on the ground that no evidence was led by the wife regarding means of the husband and her requirement for maintenance.
3. The wife and the minor children preferred a revision before the Additional Sessions Judge who by the impunged order dated 6-11-1989 came to the conclusion that the parties having not followed the nature of the proceedings failed to adduce clear evidence in the case necessiating a remand for a fresh trial.
4. Learned counsel appearing for the applicant/husband assailed the order of remand on the ground that the case could not be remanded so as to permit filling the weakness or lacuna in the case of the wife. He argued that there was nothing on the record to infer by the Sessions Court that the parties were ignorant of the nature of the proceedings and thereby failed to adduce relevant evidence.
5. Learned counsel appearing for the non-applicants/wife and minor children submitted before me that there was no ground for the Trial Magistrate in rejecting the claim of maintenance as a whole. According to the learned counsel for the non-applicants, on the basis of the evidence’ led in the case the learned Magistrate could have fixed a just amount of maintenance looking to the status of the parties. As per the learned counsel, in any case the Trying Magistrate could not reject the application for maintenance claimed by the minor children. If the minor children were not living with the applicant, it was the duty of the applicant to provide for their maintenance irrespective of his means or capacity. The law with regard to the maintenance is that an able bodied person having wife and children has a legal obligation to maintain them and for that purpose to earn.
6. Without going into the merits of the case, I have formed an opinion that this was not a case where it could be said that the parties were oblivious or ignorant of the nature of claim before the Magistrate and, therefore, a remand necessitated. In my considered opinion, the Sessions Court could have itself decided the case on merits without making any remand and on the basis of the evidence led in the case. Mere fact that the wife has not been able to lead any evidence with regard to the means of her husband, could furnish no justification for the Sessions Court to remand the case. The Sessions Court ought to have decided the case on the basis of the evidence led and already on record.
7. For the reasons aforesaid the revision is allowed and the impugned order dated 6-11-1989 passed by the Additional Sessions Judge is hereby set aside and the case is sent back to the Additional Sessions Judge for deciding the revision on merits in accordance with law.