AMARENDRA NATH BAGUI Vs. GOURI RANI BAGUI

JUDGEMENT

(1.) ORDER :- The present revisional application at the instance of the husband is directed against the judgement and order dated 13-7-1989 under S.125, Criminal Procedure Code passed by the learned Judicial Magistrate, 6th Court, Sealdah directing the petitioner husband to pay maintenance to the O.P. - wife Smt. Gouri Rani Bagui at the rate of Rs. 350/- per month from the date of filing of the petition.

(2.) O.P. No. 1 Smt. Gouri Rani Bagui filed an application under Section 125, Criminal Procedure Code for maintenance inter alia upon the allegations that she was married with the petitioner in May, 1966 according to Hindu rites and custom and that the petitioner for the reasons best known to him filed a matrimonial suit being No. 268 of 1967, under Section 12(1) of the Hindu Marriage Act, 1955 for a declaration that the marriage was nullity on the ground that opposite party No. 1 has no female organ except a small passage for passing urine and was incapable of sexual intercourse. That suit was withdrawn after the doctor who examined the O.P. No. 1 found that she had a normal female organ and was capable of sexual intercourse. After withdrawal of the aforesaid suit the present petitioner agreed to pay maintenance to the O.P. No. 1 at the rate of Rs. 300/- per month from February, 1969. The petitioner paid maintenance at the said rate from February, 1969 till December, 1978 and thereafter at the rate of Rs. 350/- per month from January, 1978 till December, 1985. From January, 1986 the petitioner stopped paying maintenance despite repeated demands and thus refused and neglected to maintain the O.P. No. 1. It was alleged that the O.P. No. 1 had no independent income and the petitioner's monthly income was about Rs. 3,500/-

(3.) The petitioner resisted the claim mainly on the ground that the O.P. No. 1 and the petitioner had been voluntarily living separately by mutual consent and O.P. No. 1 was not, therefore, entitled to get any maintenance. It was alleged that the petitioner withdrew the matrimonial suit on the request of the O.P. No. 1 and her other relations and through the negotiations of common well-wishers of both the parties. It was mutually agreed and settled between the parties that the parties would live separately by mutual consent and O.P. No. 1 would not claim any maintenance whatsoever from the petitioner and she also consented to the second marriage of the petitioner. The petitioner never paid any maintenance at the rate of Rs. 300/- or Rs. 350/- as alleged.