A wife is entitled to maintenance under Section 125 of the CrPC if she has been neglected or tortured by her husband and has no independent income of her own. An allegation of adultery against the wife must be proved by clear and convincing evidence.

R. K. MAZUMDER, J.

( 1 ) -THE instant Criminal revisional application under sections 401 and 482 of the Code of Criminal Procedure is at the instance of the husband-petitioner Shri Jibankrishna Das and this is directed against the order dated 29. 4. 2000 passed by the learned Judicial Magistrate, 4th Court, Howrah in Misc. Case No. 284 of 1998 under section 125 of the Code by which the learned Court below allowed maintenance at the rate of Rs. 900/- per month to the O. P. No. 1 wife Smt. Renu Das.

( 2 ) THE case of the husband-petitioner was in brief that he married O. P. No. 1-Smt. Renu Das long time back according to Hindu rites and customs and that out of this said wedlock two sons and one daughter were born. The daughter was 18 years old and the two sons were aged 21 years and 23 years old respectively at the relevant time. Out of his income from a tailoring shop business, the petitioner purchased a plot of land and constructed a house comprising two rooms, one bathroom and one privy. But unfortunately it so happened that his wife being O. P. No. 1 filed a petition under section 125 of the Code in December, 1998 before the learned Chief Judicial Magistrate, Howrah praying for maintenance and that by the impugned order dated 29. 4. 2000 learned Judicial Magistrate, 4th Court, Howrah granted maintenance at the rate of Rs. 900/- per month to the wife. According to the petitioner he never tortured, assaulted or abused his wife. on the other hand, it was his wife who assaulted him for which the petitioner started living separately in a rented house since 1996 leaving his own house as constructed. The further case of the petitioner was that his wife Renu was living in adultery with one Shri Nirmal Dutta. Hence the O. P. No. 1-wife was not at all entitled to get any maintenance from him as awarded by the learned Court below.

( 3 ) I have had the opportunity of hearing learned counsels for the respective parties at length in the matter.

( 4 ) THE only question requiring consideration was whether the impugned order granting maintenance to the wife dated 29. 4. 2000 should be set aside as prayed for or not.

( 5 ) AT the time of hearing learned counsel for the husband-petitioner vehemently submitted that his client never misbehaved with his wife being O. P. No. 1 and that he never neglected to maintain her. On the other hand, the O. P. No. 1-wife assaulted and tortured the petitioner for which he had to leave his own house and take shelter in a rented house. It was further submitted that O. P. No. 1-wife was leading an adulterous life with one Shri Nirmal Dutta and such an adulterous scenario was witnessed both by the petitioner and his eldest son aged about 23 years. He, therefore, urged upon this Court for quashing the instant impugned order passed by the learned Court below.

( 6 ) LEARNED counsel for the O. P. No. 1-wife submitted on the other hand, that his client was leading a very happy conjugal life for a long time and she gave birth two sons and one daughter out of the wedlock. He further submitted that his client was never involved in any adultery with anybody else and that all such allegations were baseless. He further submitted that his client never tortured or assaulted the petitioner at any point of time.

( 7 ) IT appears from record that the learned Court below found that O. P. No. 1 wife was neglected and tortured by the petitioner and failed to maintain her. It was also the finding of the learned Court below that the wife had no independent income of her own. Again the learned Court below found that the allegation of adultery as levelled against the wife could not be proved by the husband. It appears that in support of the decision for maintenance, the learned Court below reposed complete faith on the evidence of the O. P. No. 1-wife and her witnesses. On the question of adultery, learned Court below discarded the evidence of the husband and his witnesses. It appears from the evidence of husband-petitioner that

Click Here to Read the rest of this document