The obligation to prevent destitution and vagrancy under Chapter IX of the Code and the duty of the husband to maintain the minor child.

JUDGMENT

Jay Sengupta, J. - This is an application challenging an order dated 24.03.2017 passed by the Learned Judicial Magistrate, 2nd Court, Malda in Case No. 205M/2015 under Section 125 of the Code of Criminal Procedure.

2. The petitioners are the wife and the minor daughter of the opposite party. The petitioner no. 1 and the opposite party got married in the year 2005. The marriage was solemnized under the Special Marriage Act. A female child, being the petitioner no. 2, was born of such wedlock. The opposite party and the other in-laws allegedly subjected the petitioner no. 1 to physical and mental cruelty for dowry demand and finally on 05.10.2012, she and her child were purportedly driven out from the matrimonial home. The petitioner no. 1 filed the criminal case against the opposite party, inter alia, under Section 498A of the Penal Code. On 06.06.2015, the petitioner no. 1 filed an application under Section 125 of the Code claiming maintenance allowances at the rate of Rs. 20,000/- per month for herself and Rs. 15,000/- per month for her minor child. She claimed that the husband was earning about Rs. 1 lakh per month from his service while she had no independent income. Although, the application was filed in 2015, even after filing of written objection and fixing several dates, the issue of interim maintenance was not decided. The petitioner filed an application under Section 483 of the Code before this Court. By an order dated 24.03.2017 passed in CRR No. 120 of 2017, this Court directed the matter to be disposed of within thirty days from the said date. It was only after this that the impugned order was passed by the learned Trial Court. On 05.03.2019, as an interim measure, this Court directed the opposite party to pay a sum of Rs. 10,000/- per month to the wife for maintenance of the child. Thereafter, on 06.04.2022, the petitioner no. 1 withdrew this application so far as she was concerned as she had got married to another person in the meantime.

3. The matter came up for hearing before this Court on several occasions. Initially, the opposite party was represented by a learned Advocate. In fact, an opposition was also filed by the opposite party. After conclusion of hearing on 05.03.2019, the learned counsel for the opposite party prayed for liberty to file a supplementary affidavit. The same was granted. But, no such supplementary affidavit was ever filed. It appears that on that date i.e., on 05.03.2019, certain questions arose regarding non- disclosure of income by the husband opposite party and about certain claims, he had made regarding his wife's income. After this, several dates were fixed. But, after a point no one came to represent the opposite party. Several notices were sent, by post and through the aegis of the State. All efforts, to get the opposite party on board, fell flat. Accordingly, the matter was heard ex parte.

4. Learned counsel, appearing on behalf of the petitioners, submitted as follows. The learned Magistrate erred in refusing interim maintenance in favour of the petitioners merely on the ground that the claims of the adverse parties about their incomes were not substantiated. The prime object of awarding interim maintenance was to prevent vagrancy of women and children. Bald claims of the husband about wife's income could not come in the way of this beneficial piece of legislation which came within the ambit of Article 15 of our Constitution. For argument's sake, even if it was presumed that a wife was earning something nominal, she could not be denied maintenance. In fact, she was entitled to the same standard of living that she would enjoy if she been able to live in the husband's household. By any stretch of imagination, the minor child could not be denied interim maintenance even for a moment.

5. The prime contentions of the husband opposite party, as would be evident from his opposition, are as under. The opposite party had never neglected to maintain his wife and child. He disputed his