The legislative intent of Section 125 does not include a woman not lawfully married in the expression 'wife', and the question of the petitioner's marital status should be decided at the final hearing.

KALIDAS MUKHERJEE, J.

1. THIS is an application under Section 401 read with Section 482 of the Code of Criminal Procedure assailing the Order dated 18.2.01 passed by the learned Judicial Magistrate 2nd Court, Barasat refusing the prayer for interim maintenance in respect of the petitioner and the minor child in connection with M-538 of 2005 under Section 125 of the Code of Criminal Procedure.

2. THE petition under Section 125, Cr.P.C. was filed by one Rebeka Khatun against her husband Ansar Ali. The petitioner Rebeka Khatun claimed interim maintenance @ Rs.3,000/- only for her and Rs.2,000/- for her minor son, namely, Injamul Haque.

The learned Magistrate after hearing both sides and on perusal of the materials on record was pleased to reject the prayer for interim maintenance.

3. THE learned Magistrate held that it was not the contention of the petitioner that she was the legally married wife of the Opposite Party No. 1; that there was an affair between the parties which extended to the physical relationship.

4. THE learned Magistrate was of the opinion that this physical relationship pursuant to the affair did not entitle the petitioner to claim maintenance.

The learned Magistrate held that the petitioner failed to prove the prima facie case that she was the legally married wife of the Opposite Party No. 1 and as such, the learned Magistrate rejected the prayer for maintenance of the petitioner. As regards the interim maintenance for the minor child the learned Magistrate rejected the prayer holding that the paternity of the said child should be ascertained and the evidence will be adduced by both the parties and without considering the totality of the matter the learned Magistrate was not inclined to pass any interim order as regards the child.

5. THE learned Counsel appearing for the petitioner submits that the case under Section 376, Indian Penal Code was filed which ended in acquittal.

6. THE learned Counsel is pressing for the interim maintenance of the child and submits that the illegitimate child is also entitled to get order of maintenance.

In this connection the learned Counsel has referred to the birth certificate wherein the father's name of the child has been mentioned as Ansar Ali.

7. IT is submitted that in the discharge certificate also, issued by the hospital, the name of the petitioner was mentioned being the wife of Ansar Ali.

8. IT is contended that in the school certificate the name of the child was mentioned being the son of Ansar Ali. IT is the contention of learned Counsel that all the three documents were not considered by the learned Magistrate.

It appears that in the order impugned there is no reflection as to the consideration of the documents mentioned by the petitioner in support of the claim for interim maintenance.

9. THE learned Counsel for the petitioner has referred to the case reported in (2005) SCC (CR) 787 [Savitaben Somabhai Bhatiya Vs. State of Gujarat and Ors.]. It has been held by the Honourable Apex Court in Paragraph 18 of the aforesaid decision as follows:

"It may be noted at this juncture that the legislature considered it necessary to include within the scope of the provision an illegitimate child but it has not done so with respect to a woman not lawfully married. However desirable it may be, as contended by learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include a woman not lawfully married in the expression "wife"."

10. IN view of the circumstances of the case the question whether the petitioner is the wife or not, it is a question to be decided at the time of final hearing of the case. It is found that the Sessions Case No. ST 7 (9)/2004/ST 7 (1)/2005 under Section 376, INdian Penal Code against the Opposite Party No. 1 ended in acquittal.

The learned Counsel appearing for