SANTIMOY MUKHERJEE Vs. SM NILIMA MUKHERJEE

JUDGEMENT

(1.) THIS Rule is directed against an order dated 20. 1. 78 passed by the Learned Chief Judicial magistrate, Purulia in a proceeding under section 125 of the Code of Criminal Procedure, 1973. The learned magistrate allowed maintenance at the rate of Rs. 100/- per month to the Opp. Party No. 1 and Rs 50/ per month to the opposite party no. 2, who is a minor.

(2.) ADMITTEDLY, the parties were married according to Hindu rites and admittedly a son was born out of such wedlock. There is no dispute to the fact that at present the husband and the wife are living separately. The wife is living with her son. The learned Magistrate found that the husband, though possessed of sufficient means had refused and/or neglected to maintain the wife and the minor son and that the wife was unable to maintain herself. After recording such finding the learned Magistrate proceed to discuss the financial condition of the parties and on a consideration of such condition he allowed the maintenance at the rate as stated above.

(3.) MRS. Mukti Moitra, learned Advocate appearing for the petitioner husband took three fold objections. Her first objection was that since the husband had already filed a Matrimonial suit for Divorce against the opposite party wife on the ground of adultery and desertion and since the wife had not made any prayer for alimony pendente lite she was not entitled to claim maintenance in a separate proceeding under section 125 of the Code of Criminal Procedure. Her Second objection was that during the pendency of this rule the wife filed an application for alimony pendente lite in the matrimonial suit and that as such her claim for maintenance in the proceeding under section 125 of the code should be disallowed. Her third objection was that the learned Magistrate had not considered the evidence of the wife herself namely that she was somehow maintaining herself indicating tnereby that it is not the case that she was unable to maintain herself. Her last point was that in any event the quantum of maintenance as assessed by the learned Magistrate is much too excessive and disproportionate to the income of the petitioner.