A husband has a statutory and moral obligation to maintain his wife, taking into account the ability to earn and ensuring she does not become destitute, despite claims of diminished income.

Judgment :

Ajay Kumar Gupta, J.

1. The petitioner being the husband of the opposite party no. 1/wife has assailed the Judgment and Order dated 22.04.2022 passed by the Learned Additional District & Sessions Judge, 8th Court, South 24 Parganas in Criminal Motion No. 68 of 2020. The said Revisional application arose out of an order dated 21.12.2019 passed in Misc. Case No. 8/2019 filed under Section 127 of Code of Criminal Procedure, 1973 by the petitioner seeking thereby for modification or alteration of the order of maintenance granted at the rate of Rs. 4,000/- per month in a proceeding instituted under Section 125 of the CrPC.

2. By the impugned judgment, the Learned Judge dismissed Criminal Motion No. 68 of 2020 on contest without order as to cost, thereby affirming the order dated 21.12.2019 passed by the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Parganas.

3. The background fact is that the opposite party no. 1/wife initiated a proceeding under Section 125 of CrPC claiming maintenance from the petitioner/husband and same was registered as Misc. Case No. 413 of 2012 before the Learned Judicial Magistrate, 8th Court, Alipore, South 24 Parganas.

4. During pendency of the said proceeding, the opposite party no. 1 also filed an application for interim maintenance. Upon consideration of written objection filed by the petitioner and materials on record, the Learned 8th Judicial Magistrate directed payment of Rs. 2,000/- per month as an interim maintenance payable from the date of order with liberty to the wife to seek enforcement in accordance with law, in case of default.

5. Subsequently, vide order dated 08.01.2015, the main proceeding was disposed of ex parte, and directing the petitioner to pay a sum of Rs. 4,000/-per month as final maintenance in favour of the opposite party no. 1/wife and minor son.

6. According to the petitioner, the Learned Magistrate erred in awarding Rs. 4,000/- per month jointly for wife and minor child without applying his judicious mind to the actual income of the petitioner and proceeded on surmises and conjectures. It is the admitted position that no child was born from the wedlock yet maintenance was directed in favour of son.

7. The petitioner asserts that due to his limited means and financial incapacity, he has been unable to pay the said maintenance, being dependent on his father. Consequently, he filed an application under Section 127 of the CrPC seeking alteration and reduction of the maintenance on the ground of changed circumstances. The said application was registered as Misc. Case No. 08 of 2015.

8. Upon hearing both sides, the Learned Magistrate rejected the application. The petitioner contends that the rejection was mechanical and without due consideration of the grounds urged or the materials placed on record.

9. Aggrieved thereby, the petitioner filed Criminal Motion No. 68 of 2020 contending that the Learned Magistrate had erroneously fixed the quantum of maintenance without sufficient evidence, and had failed to take into account the reduction in his income and the change in his financial circumstances.

10. The petitioner urged that he is employed as a casual helper (unskilled) at a workshop in New Barrackpore, earning approximately Rs. 150/- per day, excluding holidays, resulting in a monthly income of Rs. 3,000/- to Rs. 3,500/-. A salary certificate was annexed in support. However, the Learned Additional District & Sessions Judge dismissed the revisional petition, affirming the Magistrate’s