The husband is liable to maintain his wife who has no independent source of income, even if she is living separately from him.

DIPAK SAHA RAY, J.

1. THE present case arises out of an application under Section 401 of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure, 1973.

2. IT is directed against the judgment and order dated 30.11.2010 passed by the learned Chief Judicial Magistrate, Barasat, North 24 Parganas in Misc. Case No. 159 of 2009 under Section 125 of the Code of Criminal Procedure, 1973 rejecting the petitioner's prayer for maintenance.

3. THE relevant facts of the present case are, in a nutshell, as follows:

4. THE petitioner herein/wife initiated a proceeding under Section 125 of the Code of Criminal Procedure against her husband/O.P. No. 2 herein for maintenance of Rs. 15000/- p.m. In the said Misc. Case, the petitioner alleged inter alia that she was the legally married wife of the O.P. and one month after their marriage, the husband and his father without any rhyme or reason started inflicting torture on her both physically and mentally. They even tried to kill her and ultimately on 31.1.2009, the husband took the petitioner to her father's house and after keeping her there, he left the place. Subsequently, on 19.3.2009, the petitioner received summons from the court and came to know that her husband, the O.P. herein filed Matrimonial Suit against her for dissolution of their marriage. Accordingly, the petitioner talked to her husband over telephone; but her husband threatened to kill her and for that reason she lodged G.D. with the Barasat P.S. on 20.3.2009. It was further alleged that the husband of the petitioner was a Doctor and he was posted at Haripal Rural Hospital and was getting Rs. 40,000/- p.m. The petitioner also contended that she had no independent source of income and was unable to maintain herself and her husband having sufficient means, refused and/or neglected to maintain her. Accordingly, the said Misc. Case was filed.

5. AS against this, it appears from the impugned judgment that the husband/O.P. No. 2 contested the case by filing written objection wherein the material allegations made in the application under Section 125 of the Code of Criminal Procedure had been denied. It was the specific case of the husband that the petitioner/wife was a suspicious about his fidelity and she used to abuse him with filthy languages and used to pressurise him to purchase a flat at Barasat. In the said written objection, it was alleged that the petitioner earned Rs. 7,000/- to Rs. 8,000/- by doing private tuition and as such she is not entitled to get any maintenance.

6. IN the said Misc. Case four points were considered by the learned Magistrate in arriving at his decision which are as follows:

1. Was the petitioner refused and neglected maintenance allowance by the OP?

2. Is the petitioner having no income of her own?

3. Is the petitioner entitled to relief as prayed for?

4. To what other relief the petitioner is entitled to?

7. IT appears from the fact that the learned Magistrate discussed the evidence of the petitioner and the O.P. and arrived at a decision that the petitioner in her evidence has corroborated the contention of her application under Section 125 of the Code of Criminal Procedure. It is further observed by the learned Magistrate that the husband/O.P. No. 2 has failed to establish that the petitioner/wife had any independent income.

8. IN the instant case, on perusal of the evidence of PW 1 and OPW 1, it appears that the petitioner stated that she had no independent source of income and was unable to maintain herself. It further appears that the husband/O.P. No. 2 though alleged in his evidence that the petitioner had some income but failed to establish the same by producing any documents. Now, it is well settled that unless the husband can show that his wife has some income, the wife's version about her nil income is to be accepted.

9. IT is argued on behalf of O.P. No. 2 that the petitioner left her matrimonial home on her own accord and she refused to come back to her mat