KALIDAS MUKHERJEE, J. - (1.) THIS is an application under Section 401 read with Section 482 of the Code of Criminal Procedure assailing the Order dated 18.2.01 passed by the learned Judicial Magistrate 2nd Court, Barasat refusing the prayer for interim maintenance in respect of the petitioner and the minor child in connection with M-538 of 2005 under Section 125 of the Code of Criminal Procedure.
(2.) THE petition under Section 125, Cr.P.C. was filed by one Rebeka Khatun against her husband Ansar Ali. THE petitioner Rebeka Khatun claimed interim maintenance @ Rs.3,000/- only for her and Rs.2,000/- for her minor son, namely, Injamul Haque. The learned Magistrate after hearing both sides and on perusal of the materials on record was pleased to reject the prayer for interim maintenance. The learned Magistrate held that it was not the contention of the petitioner that she was the legally married wife of the Opposite Party No. 1; that there was an affair between the parties which extended to the physical relationship.
(3.) THE learned Magistrate was of the opinion that this physical relationship pursuant to the affair did not entitle the petitioner to claim maintenance. The learned Magistrate held that the petitioner failed to prove the prima facie case that she was the legally married wife of the Opposite Party No. 1 and as such, the learned Magistrate rejected the prayer for maintenance of the petitioner. As regards the interim maintenance for the minor child the learned Magistrate rejected the prayer holding that the paternity of the said child should be ascertained and the evidence will be adduced by both the parties and without considering the totality of the matter the learned Magistrate was not inclined to pass any interim order as regards the child.;