MITHU DEVI Vs. SIYA CHOUDHARY

JUDGEMENT

(1.) THIS application in revision is directed against an order of Shree M.A.J. Khan, Magistrate, First Class, Bagusarai, dated the 26th December, 1970, rejecting the application of the petitioner for maintenance filed under Section 488(1) of the Code of Criminal Procedure (hereinafter referred to as the "Code").

(2.) THE petitioner filed an application under Section 488(1) of the Code before the Sub -Divisional Magistrate, Begusarai, alleging herself to be the legally married wife of the opposite party and claiming Rs. 100/ - per month as maintenance from him. According to the case of the petitioner, she was married to the opposite party in the year 1954 in accordance with the Hindu rites. They lived as husband and wife for some time when the opposite party brought in a second wife. After that, the opposite party started neglecting the petitioner. Since 1960, he completely deserted the petitioner and refused to keep the petitioner with him at his residence in village Chakaur. The petitioner had no income of her own and she was in great distress and financial difficulties in maintaining herself. Left with no option, she went to the house of her brother, who himself was (not ?) in a position to properly maintain her. In the aforesaid petition, the petitioner stated in detail as to how the opposite party, having sufficient means, was neglecting her and had refused to maintain her, giving a cause of action to the petitioner to file the aforesaid petition.

(3.) THE learned Magistrate discussed the evidence adduced on behalf of both parties to find out whether the allegation of the opposite party that the petitioner had remarried one Uttim Choudhary of Hamharia in Sagai form was correct or not; but he did not record any specific finding. In my view, the learned Magistrate has rejected the application of the petitioner merely on the ground that conjugal relationship between the petitioner and the opposite party had ceased since 1958 and the opposite party was living with his second wife separately from the petitioner. The learned Magistrate has further observed that the application, having been filed in 1970, long after separation, was not maintainable. He was also of the view that the mere fact that the opposite party got a second wife will not amount by itself to neglecting the petitioner, and, as such, the petitioner had not proved that the opposite party had neglected her or had refused to maintain her.