A wife who leaves the matrimonial home on her own accord and refuses to reside with her husband without any sufficient reason is not entitled to maintenance under Section 125(4) CrPC.

Raghunath Ray, J.

1. BY filing an application under section 401 and 482 of the Criminal Procedure Code the petitioner wife has sought to challenge the Judgment and Order dated 04.06.08 passed by the learned Additional Sessions Judge, 3rd Court, Burdwan in Criminal Motion No. 108 of 2007 affirming the judgment and order dated 26.09.2007 passed by the learned Judicial Magistrate, 6th Court, Burdwan in Misc. Case No. 212 of 2005 whereby she has rejected the petitioner's claim for maintenance from the opposite party husband.

2. BACKGROUND facts leading to filing of this revisional application may be capsulised as under: An application under section 125 Cr PC was filed by the petitioner wife claiming maintenance @ Rs. 2000/- p.m. on the ground that she has been abused and tortured by her husband and in-laws since their further dowry demand could not be satisfied by her mother. The marriage between her and the O.P. husband was solemnized in accordance with Hindu Religious Rights on 09.08.04 and such solemnisation of marriage was also preceded by registration of their marriage on 07.04.04. It is, further, contended by her that she is unable to maintain herself while her husband has sufficient earnings from her employment in a Alumunium Steel shop and also from her 5/7 bighas of land properties. This Misc. Case No. 212 of 2005 under section 125 Cr PC has accordingly been instituted at the instances of petitioner wife.

The husband O.P. has sought to resist the claim of maintenance by controverting all the material allegations of torture and further demands etc. in his written objection. It is also contended therein inter alia that she left her matrimonial home on 26th Bhadra 1411 BS since he could not concede to her proposal of staying in her mother's house as a domesticated son-in-law. He thereafter, had to file a suit under section 22 of Special Marriage Act praying for restitution of their conjugal rights, but to no effect. Since his wife is residing at her mother's house out of her own accord and is also earning sufficient money by coaching music students, he is not liable to pay any maintenance. He, has, therefore, prayed for dismissal of the maintenance proceeding.

3. ON consideration of averments made in the pleadings and evidence adduced by the parties coupled other relevant circumstances and materials on record, learned Magistrate rejected her petition dated 27.07.2005, claiming maintenance, vide order dated 26.09.07.

4. AGAINST such order of rejection the petitioner wife preferred a revision registered as criminal motion 108/2007 which was also subsequently dismissed on contest by learned Additional Sessions Judge, 3rd Court, Burdwan on 04.06.09.

This revision has thus been preferred challenging concurrent findings of both the learned Courts below.

5. MR. Arup Chnadra Chtterjee appearing with MR. A. K. Ghosh submits in support of the revision that all ingredients of section 125 Cr PC have fully been satisfied in this case. The petitioner being an able-bodied person is liable to pay maintenance to his wife and provisions under section 125 (4) Cr PC have no role to play in the facts and circumstance of the present case. More so, whenever it is specifically averred in her maintenance petition that she is unable to maintain herself. According to him, both the Courts below have failed to appreciate the nature and spirit of this beneficial legislation which indicates husband's moral obligation to maintain his wife. Therefore, orders impugned should be set aside in exercise of this Court's inherent jurisdiction to prevent vagrancy and destitution.

6. MR. A. K. Ahmed, learned counsel for the State submits that since the marriage is admitted and the wife petitioner having no independent source of income, has approached this Court, her prayer for maintenance deserves consideration, although she has failed to get any relief from the learned Courts below.

Mr. Sourav Chatterjee, Advocate appearing on behalf of the OP husband suppor