The main legal point established in the judgment is the entitlement of the wife to maintenance based on her residence in the husband's house and the husband's income, as well as the lack of entitlement of the wife's two children, who had attained majority, to maintenance from the husband.

Prasenjit Mandal, J:

1. This is application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 arising out of an order dated 27.12.2005 passed by the learned Judicial Magistrate, Second Court, Diamond Harbour, District – South 24 Parganas in Misc. Case No.282 of 2003 thereby allowing the maintenance in favour of the wife at the rate of Rs.1,250/- per month from the date of filing of the application under Section 125 of the Cr.P.C. Being aggrieved by the said order of maintenance, the wife has preferred this revisional application. The fact leading to the filing of the revisional application is that the wife/petitioner filed an application under Section 125 of the Cr.P.C. against the husband/opposite party before the learned Additional Chief Judicial Magistrate, Diamond Harbour praying for maintenance in favour of the wife at the rate of Rs.1,500/-per month for herself and Rs.1,500/- per month for each of her two children, thus, totalling Rs.4,500/- per month and the litigation cost of Rs.5,000/-. Admittedly, the marriage between the two was held in April, 1978 according to Hindu customs and rites and after marriage they lived together and two sons were born in the wedlock. The wife contended that unfortunately after one year from the date of marriage the husband subjected the petitioner to torture both, physically and mentally. He also demanded more dowry. Ultimately he left the house and he began to live elsewhere with another lady. He was landed properties. He is also a Government service holder and thus he earns Rs.15,000/- per month. He did not pay maintenance to them. So the case under Section 125 of the Cr.P.C. has been filed.

The husband contested the maintenance claim petition. His contention is that the wife and the 2 sons had beaten him. Thereafter he left his house. The 2 sons are major. They are residing in the house constructed by the husband. The wife is cultivating paddy and vegetables on the bastu land of the husband.

Upon consideration of evidence of both the sides, the learned Magistrate granted maintenance at the rate of Rs.1,250/- per month in favour of the wife only. He did not grant any maintenance for the two sons of the petitioner on the ground that they have attained majority. So they are not entitled to get any maintenance.

Now, the contention of Mr. Deb, the learned Advocate for the petitioner, is that the husband is bound to maintain the wife and his two children so long as the wife and the children are unable to maintain themselves. Therefore, the order passed by the learned Magistrate is not a correct one. Maintenance should also be granted in favour of the two sons of the wife. On the other hand, the learned Advocate for the opposite party /husband has supported the judgment.

Now the point for consideration is whether the wife is entitled to get further maintenance from her husband.

So far as the maintenance for the wife is concerned, I find that the learned Magistrate, upon due consideration of the evidence on record, has opined that the wife has been residing in the house of the husband at his native palce at village Raghunathpur, P.O. Beresharpur under P.S.

Mandirbazar, District : South 24 Parganas and the husband has been residing at Garia with one lady. The court also found from evidence on record that the husband is a Group -D employee of the C.P.W. and he gets a salary of Rs.5,264/- per month. Upon analysing the evidence, the learned Magistrate also found that the prayer for maintenance for the wife should be allowed for the interest of justice and accordingly he granted Rs.1,250/- per month for the wife herself with effect from the date of filing of the application.

I have observed above that the learned Magistrate held that the wife is residing in the house of the husband at his native place and in such circumstances the husband was directed to pay maintenance at the rate of Rs.1,250/- per month while the claim of the wife was Rs.1,500/- per mon