ORDER B.D. Gupta, J.
1. This revision arises out of proceedings under Section 488, Criminal Procedure Code. By the order sought to be revised, applicant Chhedi Lai Singh has been directed to pay to the opposite-party Shrimati Bhanumati maintenance at the rate of Rs. 40/- per month with effect from the 2nd of April, 1968. Having heard learned Counsel for the parties and having scrutinised the material before me, I find myself unable to maintain the order of the learned Magistrate.
2. There was no controversy that Bhanumati had been married to the applicant somewhere about 1960. The Application for grant of maintenance under Section 488, Criminal Procedure Code was made by Bhanumati on the 2nd of April, 1968 on the allegation, inter alia, that she had been treated cruelly by the applicant and had been sent back to her father's place after depriving her of her ornaments and, further, that ever since then the applicant had refused to maintain her. The claim made by Bhanumati was contested by the applicant on various assertions one of which was to the effect that she had become a disciple of a Naga Baba known as Purnanand and was not willing to discharge her marital duties towards the applicant, that thereafter a Panchayat in the 'biradari' had been held in which the marital tie between the parties had been dissolved, leaving them both to marry again whomsoever they liked. After recording evidence led by the parties, the learned Magistrate found against the applicant and directed payment of maintenance as stated earlier in this order.
3. In the course of a revision in the Court of Session, two contentions, in the main, were raised. The first was that the learned Magistrate had not properly appreciated the evidence bearing on the question of dissolution of the marriage tie between the parties and the second was that the applicant was a minor studying in class VTII and did not have means of his own to pay maintenance to Bhanumati. The learned Sessions Judge upheld the finding recorded by the learned Magistrate on the first contention and, as regards the second contention, the learned Judge recorded the view that the mere fact that the applicant was a minor did not absolve him from his liability to maintain Bhanumati. The learned Judge referred to a decision of the Madhya Bharat High Court in the case of Prabhuial v. Parwatibai AIR 1952 Madh Bha 96 : 1952 Cri U 868, and also to a decision of the Madras High Court in the case of In re: Kandasami Chetty (1926) 27 Cri U 350 in which it was laid down that in proceedings under Section 488 Criminal Procedure Code, the word 'means' was not intended to be confined to visible means, such as real property or definite employment. It was observed that if a man was healthy and able-bodied, he must be taken to have the 'means' to support his wife.
4. It does not appear to have been in controversy that the applicant was aged sixteen years only in the year 1968 during which year the proceedings under Section 488 Criminal Procedure Code started and were also concluded by the order of the learned Magistrate dated October 15, 1968. It was also not in controversy that during that period the applicant was a student.
5. As regard pecuniary means of the applicant, no evidence has been pointed out on the basis of which it can be held that the applicant had any property of his own or any income from any source. It is true that the applicant's father is stated to have been in possession of about 16 bighas of agricultural land and, further, that it was the applicant's father who was maintaining the applicant and educating him. In these circumstances, it is manifest that the applicant had no means of his own. As regards ability to earn, the fact that the applicant was being educated and was a student of class VIII puts it out of question that the applicant should have taken to some manual labour after school hours or before that for the sake of earning to provide for his wife's maintenance. In my opinion, in the circumstances of the case, it was not possible to hold that the applicant had any 'means', pecuniary or otherwise, from out of which he could possibly provide for the maintenance of his wife. It is settled law that the 'means' or income of the father of the ap-jplicant would be irrelevant for the purpose of fixing the liability of the applicant to maintain his wife and in the circumstances, 1 have no option but to set aside the order of the learned Magistrate dated 15-10-1968 directing the applicant to pay maintenance to Bhanumati with effect from 2-4-1968.
6. In the result, this revision is allowed, the order of the learned Magistrate is set aside and the application under Section 488, Criminal Procedure Code filed by Bhanumati is dismissed.
7. Before parting with this case, I would like to observe that there is no controversy that the applicant has attained majority during the period this revision has been pending in this Court. It may be added that during the pendency of this revision an application under Section 561-A, Criminal Procedure Code was moved on behalf of Bhanumati, supported by an affidavit, praying for the admission in evidence of a copy of a 'Kutumb' register with a view to making out that the applicant Chhedilal Singh was a much older man and that he had married another woman by the name of Srimati Budu-nia. This application was also before me today and has been dismissed as I saw no good reason to grant the prayer contained in the said application dated 21/22-12-1972. I must, however, observe that the circumstance that the applicant has attained majority during the pendency of the proceedings in this Court and keeping in view the principal grounds upon which I have allowed this revision and set aside the order of the learned Magistrate dated 15-10-1968, it will be open to Bhanumati to apply afresh for an order under Secion 488. Criminal Procedure Code, on such grounds as she may be advised.