MALAY KUMAR BASU, J.

( 1 ) THIS revisional application is directed against the judgement and order dated 29th December, 2001 passed by the learned Additional Chief Judicial Magistrate, Sealdah, South', 24 parganas in case No. M-29/2000. By this order the learned Magistrate allowed a petition under Section 125 Criminal Procedure Code filed by the wife, Bharati Haider, claiming maintenance for herself and for her daughter. The learned Magistrate while allowing this petition awarded a sum of Rs. 800/- as maintenance for the wife-petitioner and Rs. 500/ for the daughter every month payable by the O. P. with effect from the month of order. It was farther directed by the learned Magistrate that the amount if any already paid by the husband towards interim maintenance should be treated as cost of the case and the same would not be adjusted with the amount of maintenance.

( 2 ) BEING aggrieved by. that order the husband has preferred this revisional application on the ground that the wife having independent source of income and having resided separately from the husband of her own accord, the husband has no responsibility in the matter of her staying away his house and therefore he has never neglected in the matter of providing maintenance to her and under such circumstances the ingredients of the provisions of Section 125 Criminal Procedure Code having not been fulfilled, the petition was liable to be rejected. But the learned Magistrate having allowed the same has committed an error of law and fact and the impugned order should therefore be set aside.

( 3 ) MR. Roy, learned Advocate for the revisional applicant-husband has strenuously tried to convince the court that there was absolutely no negligence on the part of the husband in the matter of providing maintenance to the wife since he had to leave the house where he and his wife used to reside along with the children born out of the wedlock on being asked by the wife. Mr. Roy points to the cross-examination of the P. W. 1, the wife, where it has been suggested by the husband to her that he left the residence at the instance of the petitioner-wife. But looking into the statements of the P. W. 1 in her cross-examination I do not find anywhere that any such suggestion has been accepted by her. On the other hand she has denied such a suggestion in her cross-examination and after such denial of her there has been no further cross-examination and the contention of Mr. Roy that this is in evidence that the husband had to leave the matrimonial home at the instance or instigation of the wife has not been proved to be true at all. It is in evidence that the husband, Sanyasi Haider, left the house where he used to live with the petitioner-wife and their children in 1978 (while the marriage took place in 1971) and started living elsewhere separately and the petitioner-wife became compelled to work as a maid-servant in order to have her both ends meet and also to bring up the three children who were born out of that wedlock. It is in evidence that at that time the wife did not file any petition claiming maintenance and went on struggling to survive with three children with her own earnings. Mr. Roy has argued that when she did not claim any maintenance for such a long time namely about 20 years, if she could survive without any monetory assistance provided by her husband, it should be assumed and presumed that she had no necessity and she had sufficient means for providing her own maintenance and the maintenance of her children with her own earnings and the petition at this belated stage would be untenable in the eye of law. This contention of Mr. Roy is simply absurd. When a wife having been forced to live without the maintenance being provided by the husband and to fight for survival of herself as well as her children, while the husband who married that wife and further those children did not care to take the responsibility of maintaining them, if she does not claim any maintenance for lo

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