A husband is liable to maintain his wife and child even if he does not have any visible means of income.

Arun Kumar Bhattacharya, J.

The hearing stems from an application under section 401 read with section 482 Cr.PC filed by the petitioner praying for revision of the order dated 31.05.2004 passed by the learned Additional Sessions Judge, First Track Court No.4, Barrackpore in Criminal Motion No.3/2004 reversing the order dated 24.09.2003 passed by the learned Chief Judicial Magistrate, North 24 Parganas, Barasat in case No.M-124/99.

2. The circumstances leading to the above application are that the petitioner is the legally married wife of O.P. No.1, their marriage having been solemnized on 07.12.96 according to Hindu rites and customs, and in that wedlock a female child was born. She was pressurized by O.P. No.1 for bringing more dowry from her parents and ultimately she was driven out from her matrimonial home on 15.12.97. She initiated the said maintenance proceeding under section 125 Cr.PC being case No. M-124/99 claiming maintenance @ Rs. 1,500/- p.m. for self and Rs. 600/-p.m. for her minor child which was allowed in part by the learned Chief Judicial Magistrate, North 24 Parganas, Barasat by order dated 24.09.2003 awarding maintenance to the petitioner @ Rs. 1,000/- p.m. and her child @ Rs. 600/-p.m. which reversed by the impugned order dated 31.05.2004 in Criminal Motion No.3/2004.

3. Being aggrieved by, and dissatisfied with, the said order, the petitioner has come up before this Court.

4. As none appeared for O.P.No.1, the matter was heard ex parte.

5. Mr. Chatterjee, learned Counsel for the petitioner, assailed the impugned order as perverse contending that when all the necessary ingredients of the provision of section 125 Cr.PC have been established, the learned Revisional Court below reversed the order of the learned Magistrate solely on the ground of non-production of any document by the present petitioner showing business of the O.P. in spices.

6. Undisputedly the petitioner is the legally married wife of O.P. No.1 and in that wedlock a female child was born. There is also no dispute that the said O.P. No.1 is an employee of M/s. Aurio Pharmaceutical Laboratories.

7. To sustain an application under section 125 Cr.PC filed by a wife for self and her child, one out of three essential ingredients required to be established is that the husband has sufficient means.

8. Regarding other two ingredients there is no dispute that the same have been duly established by the petitioner.

9. As regards the aforesaid ingredient, it is well settled that `means does not signify only visible means, and if one is healthy and able-bodied he shall be held to have sufficient means to support his wife. It also does not mean the tangible property or sources of income of the husband but also his capacity, potentiality and status. The onus lies on the husband to show want of means. It is the specific evidence of the petitioner (P.W.1) that at the time of her marriage (in 1996) the O.P. used to earn Rs. 2,000/- p.m. as an employee of M/s. Aurio Pharmaceutical Laboratories and Rs. 3,000/-p.m. from his business of cooking spices. Though the O.P. in his written objection claimed that he gets Rs. 42/- per day with 10% D.A. and 5% house rent allowance, totalling to Rs. 1,500/- p.m. as daily labourer, in his evidence as O.P.W.1 he reduced the earning to Rs. 600/- to 700/-p.m. only contending that he is working there on daily wages basis on condition of `no work no pay which is quite contradictory to his pleadings. It has rightly been observed by the learned Magistrate that a daily worker cannot be expected to get D.A. and house rent allowance. However, O.P. has suppressed the truth and he does not appear to have come with clean hands. The O.P. could easily call for and produce the Pay Register of his firm which he failed to do and it will lead the Court to draw an adverse inference that had it been called for and produced, it would have supported the petitioners story. So, he having failed to discharge the burden of showing want o