KARTICK CH RUDRA Vs. NILA RUDRA (PAUL)

JUDGEMENT

(1.) This is a revisional application under section 482 of the Criminal Procedure Code directed against the judgment and order dated 3rd August, 1996 passed by the Learned S.D.J.M., Durgapore in Misc. Case No. 128 of 1995 allowing the application for maintenance under section 125 of the Criminal Procedure Code in favour of the petitioner wife (the opposite party in the present revisional application) and directed the opposite party husband (the revisional applicant in this case) to pay maintenance to the wife at the rate of Rs. 1500/- per month with effect from September, 1995 and also the costs of the proceedings to the extent of Rs. 2000/- to the wife.

(2.) Being aggrieved by that order the husband has preferred this revisional application challenging the same as erroneous, illegal, improper and unsustainable.

(3.) It is the contention of Mr. Sur, learned advocate for the husband applicant, that the Ld. Magistrate has not properly considered the question wheather all the relevant ingredients of section 125 of the Criminal Procedure Code have been satisfied from the materials on record and has fallen into error by passing the impugned judgment perversely. Thus, according to Mr. Sur, the Ld. Magistrate has not tried to ascertain the exact income of the husband and has blindly, accepted the case of the wife in that respect, namely, Rs. 10000/- per month. It is the case of the husband that he is employed and he has no business and the business which has been alleged by the wife, belongs to his father and even after that the learned Magistrate has not considered it necessary to require the petitioner wife to adduce evidence on that aspect and satisfy the court as to the allegation about the quantum of income of the husband. But I am unable to accept this contention of Mr. Sur. From the evidence it appears that the wife has clearly stated that the opposite party husband runs a business and therefrom he earns a sum of Rs. 10000/- per month approximately. As against this the opposite party husband has stated that the business is not of him but it belongs to his father and he has no employment whatsoever. It is curious to note that the husband after making such a statement does not make any attempt at producing any scrap of paper to show the correctness of his allegation that the business belongs to his father or is in the name of his father, nor he examines his father in that respect. There cannot be any denying the fact that as soon as the husband has admitted that there is a business, but it is in the name of his father and not in his name, the burden of proof shifts on to his shoulder to show to the satisfaction of the court the correctness of such allegation and also to enable the court to come to a finding as regards the quantum of income which is father earns from that business. The husband's omissions or failure to adduce any evidence in this behalf is very significant and from this the Ld. Magistrate has justifiably come to the finding that the income of the husband as alleged by the wife should be presumed to be correct and acceptable.