JUDGMENT :

Subhendu Samanta, J.

1. This is an application u/s 482 read with Section 401 of the Code of Criminal Procedure against an order dated 10.08.2022 passed by Learned Judicial Magistrate 6th Court, Howrah in Misc Case No. 407 of 2022 u/s 125 of the Code of Criminal Procedure.

2. The present petitioner filed an application before the Learned Magistrate concern claiming for maintenance u/s 125 Cr.P.C. against the opposite respondent No. 1. Learned Magistrate has disposed of an interim application for maintenance by the petitioner vide impugned order dated 10.08.2022 wherein the Learned Magistrate has observed that

Therefore at this stage of the case, although the OP being an able bodied person, is obliged to maintain his wife, but the wife is also having her independent source of income, which is not remarkably less from the annual income of the OP rather, which is more or less equal to the annual income of the OP keeping in mind his liabilities towards the different loans and his mother dependent upon him. Therefore, at this stage of the case, without taking evidence, no inference can be drawn up regarding the sufficiency of the income of the petitioner and as such, she is not entitled to get any interim maintenance from the OP at this stage.

3. Being aggrieved by and dissatisfied with the said order the instant criminal revision has been preferred. The Learned Counsel for the petitioner submits that the Learned Magistrate has erroneously construed the facts in hand and denied the interim maintenance. He further submits that the Learned Magistrate has not considered the affidavit of assets filed by the petitioner. The Learned Magistrate was erroneous in observing that the OP has a car loan along with other loans and liabilities.

4. It is the contention of the Learned Counsel for the petitioner that the present petitioner is a married wife of the respondent No. 1. Respondent No. 1 is earning huge income by way of his business but only to deny the maintenance respondent No. 1 has framed a false story. During the course of argument Learned Counsel for the petitioner also placed the income tax returns and other related documents of the respondent No. 1 to show that the respondent No. 1 is earning huge amount of money. Learned Counsel for the petitioner also cited two decisions of Hon’ble Supreme Court reported in Sunita Kachwaha Vs. Anil Kachwaha and Ors (2014) 16 SCC 715 and Shailja and Anr Vs. Khobanna (2018) 12 SCC 199 and submits that merely the income of the wife cannot debarred her from getting proper maintenance.

5. Learned Counsel appearing on behalf of the respondent No. 1 submits that the petitioner is an employed lady prior to the marriage. She had independent source of income and which is sufficient to enable her to maintain herself. The standard of living which she accustomed prior to her marriage is appropo similar after her marriage. He submits that the Learned Magistrate was justified for not awarding interim maintenance as the petitioner has independent source of income. He further submits that the Learned Magistrate has clearly observed that the petitioner had liabilities and loans if that be reckoned, the income of the husband/respondent No. 1 is less than the petitioner. He submits that there is no illegality or impropriety in the impugned order. So, the instant criminal revision is liable to be set aside.

6. Heard the Learned Counsel appearing on behalf of the parties. The Hon’ble Supreme Court in Rajnish Vs. Neha and anr. (2021) 2 SCC 324 has decided the issue of granting maintenance in favour of the married wife. Hon’ble Supreme Court in Rajnish has directed the concern Magistrate to direct the parties to file affidavit of assets and liabilities. On the basis of which the Magistrate has to decide the maintenance required to be justified for destitute married lady and the children. In paragraph 77 and 78. The Hon’ble Supreme Court in Rajnish (Supra) has decided the criteria for determining quantum and maintenan