PANCHU GOPAL MODAK Vs. DOLLY MODAK

JUDGEMENT

(1.) This is the husband's Rule against an order for maintenance, passed by the learned Chief Presidency Magistrate, Calcutta, under section 488 of the Code of Criminal Procedure. The order was passed on the wife's application and the learned Magistrate has directed the present petitioner (husband) to pay a monthly allowance of Rs. 25 each for maintenance of the wife and her two daughters with effect from June, 1954. Against this order, the present Rule was obtained by the husband on Aug. 9, 1954. Chunder, J., issued the Rule only on Ground No. 1, which runs as follows:

(2.) I, however, gave leave to Mr. Dutta to argue the case as an open Rule and to urge any point which appeared to him to have substance in it. Pursuant to this leave, Mr. Dutta raised three further contentions. He urged that there was no finding in the learned Magistrate's judgment as to "neglect or refusal to maintain" the wife and the daughters and in the absence of such a finding no order for maintenance could be made under section 488 of the Code. He urged further that, on the materials before the Court, no case of "neglect or refusal" had been proved and he strongly criticised the view of the learned Magistrate that the existence of a second wife was by itself sufficient to entitle the applicant wife to an order under section 488 of the Code. Mr. Dutta also contended that the husband petitioner, as the father of the two minor daughters, was entitled to their custody and the mother opposite party could not refuse to allow them to live with him and claim maintenance for them on the plea that they were and would be living with her. In the circumstances of this case. I have also thought it proper to consider the question of the quantum of maintenance which is challenged in Ground No. V of the petition of motion.

(3.) From the admissions of the parties and the evidence, adduced in the case, certain facts emerge which may safely be taken to have been fully established. These facts are as follows: