( 1 ) THIS revisional application is directed against the order dated 10. 4. 06 passed by the learned Additional Chief Judicial Magistrate (hereinafter called the ACJM), Barrackpore in connection with Case No. M/195 of 2005 thereby allowing the application under section 125 of the Cr. PC filed by the opposite party (in short the O. P.)/wife and granting her maintenance @ Rs. 1000/- per month for herself and @ Rs. 700/- per month for her minor son and directing the petitioner to pay maintenance from the date of filing of the application under section 125 of the Cr. PC.

( 2 ) MR. Jiban Ratan Chatterjee, the learned Advocate for the petitioner husband submitted that the petitioner does computer repairing job and his income is very meagre. On 18. 4. 05, the 0. P. /wife left the matrimonial home and went away to her father's house. Since then the O. P. did not come back to husband's house in spite of repe ted efforts made by the husband petitioner to take her back. The learned Magistrate who allowed the application under section 125 of Cr. PC did not appreciate the evidence and materials on record and failed to realise that the wife left matrimonial home on her own without any just and proper cause. In view of provisions of sub-section (4) of section 125 of the Cr. PC, if a wife refuses to stay with the husband without any just cause, she cannot claim maintenance. The learned Magistrate did not consider the relevant provisions of section 125 (4) of the Cr. PC.

( 3 ) MR. Chatterjee next contended that the learned Magistrate did not consider the income of the husband. In the written objection the husband specifically mentioned that working as a computer repairing service he earns hardly Rs. 3400/- per month. No general diary or FIR was lodged by the O. P. at police station concerning torture on her which she alleged in her application under section 125 of the Cr. PC. The allegation of torture for four years accordingly was not established when there was no paper or document to show torture on her for a continuous period of four years. The learned Magistrate without proper evidence held that there are conditions in favour of the wife which requires granting of maintenance to her. Such an observation of the learned Magistrate holding unfavourable condition of the wife was without any basis and evidence and based on surmise and conjecture. On the contrary, the evidence of the wife reveal that after marriage at least thrice she went to Puri with her husband and was leading a happy conjugal life. On 18. 4. 05 she went away to paternal home with her father and thereafter, she did not come back and without any just cause she is staying at her father's house. The wife is not entitled to claim any maintenance in view of the provisions of section 125 (4) of the Cr. PC and the order of the learned Magistrate granting her maintenance should be set aside. In support of his contention Mr. Chatterjee referred to the decisions in gita Das @ Sangita Das vs. Tapas Das, reported in 2004 (1) CHN 237 and Kumar sankar Chakraborty vs. Juthika Chakraborty, reported in 1996 (2) CLJ 502.

( 4 ) ON the contrary, Ms. Dalia Roy, the learned Advocate for the O. P. wife submitted that there were unfavourable conditions in the matrimonial home for which the wife could not live with her husband and had to leave the matrimonial home. The husband did not take any information of her during the period while she was staying in her father's house. The husband did not pay any money or maintenance to the wife or to the minor child and, this circumstance is sufficient to show negligence on the part of the husband-petitioner to maintain his wife and child. The evidence of the husband reveals that he has mobile phone, land phone and visiting card. Possession of mobile and land phone as well as printing visiting card clearly suggests that the income of the husband is high and he has sufficient means to pay maintenance to the wife and the child. The learned Magistrate made no

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