MALAY KUMAR BASU, J. - (1.) This revisional application is directed against the judgement and order dated 29th December, 2001 passed by the learned Additional Chief Judicial Magistrate, Sealdah, South', 24 Parganas in case No. M-29/2000. By this order the learned Magistrate allowed a petition under Section 125 Criminal Procedure Code filed by the wife, Bharati Haider, claiming maintenance for herself and for her daughter. The learned Magistrate while allowing this petition awarded a sum of Rs. 800/- as maintenance for the wife-petitioner and Rs. 500/ for the daughter every month payable by the O. P. with effect from the month of order. It was farther directed by the learned Magistrate that the amount if any already paid by the husband towards interim maintenance should be treated as cost of the case and the same would not be adjusted with the amount of maintenance.
(2.) Being aggrieved by. that order the husband has preferred this revisional application on the ground that the wife having independent source of income and having resided separately from the husband of her own accord, the husband has no responsibility in the matter of her staying away his house and therefore he has never neglected in the matter of providing maintenance to her and under such circumstances the ingredients of the provisions of Section 125 Criminal Procedure Code having not been fulfilled, the petition was liable to be rejected. But the learned Magistrate having allowed the same has committed an error of law and fact and the impugned order should therefore be set aside.
(3.) Mr. Roy, learned Advocate for the revisional applicant-husband has strenuously tried to convince the court that there was absolutely no negligence on the part of the husband in the matter of providing maintenance to the wife since he had to leave the house where he and his wife used to reside along with the children born out of the wedlock on being asked by the wife. Mr. Roy points to the cross-examination of the P.W. 1, the wife, where it has been suggested by the husband to her that he left the residence at the instance of the petitioner-wife. But looking into the statements of the P.W. 1 in her cross-examination I do not find anywhere that any such suggestion has been accepted by her. On the other hand she has denied such a suggestion in her cross- examination and after such denial of her there has been no further cross- examination and the contention of Mr. Roy that this is in evidence that the husband had to leave the matrimonial home at the instance or instigation of the wife has not been proved to be true at all. It is in evidence that the husband, Sanyasi Haider, left the house where he used to live with the petitioner-wife and their children in 1978 (while the marriage took place in 1971) and started living elsewhere separately and the petitioner-wife became compelled to work as a maid-servant in order to have her both ends meet and also to bring up the three children who were born out of that wedlock. It is in evidence that at that time the wife did not file any petition claiming maintenance and went on struggling to survive with three children with her own earnings. Mr. Roy has argued that when she did not claim any maintenance for such a long time namely about 20 years, if she could survive without any monetory assistance provided by her husband, it should be assumed and presumed that she had no necessity and she had sufficient means for providing her own maintenance and the maintenance of her children with her own earnings and the petition at this belated stage would be untenable in the eye of law. This contention of Mr. Roy is simply absurd. When a wife having been forced to live without the maintenance being provided by the husband and to fight for survival of herself as well as her children, while the husband who married that wife and further those children did not care to take the responsibility of maintaining them, if she does not claim any maintenance for long years and goes on struggling hard, that does not debar her under any stretch of law or logic from claiming maintenance from her husband on a subsequent date. It is in evidence that she did not get or claim any maintenance from her husband on any single occasion during this long period. It is the case of the husband that on several occasions he sent money by postal money order in the name of the petitioner-wife. Thus that rather shows that she became needy and required monetary assistance during this period and the husband is giving recognition to such a requirement. Secondly, Mr. Mitra in this connection has pertinently referred to a decision of the Apes Court reported in 1999 J. T. (5) 29 (Rqjati vs. C. Ganeshan) wherein it has been enjoined under similar circumstances that when a helpless wife having had to earn some money by working as a maid-servant in order to struggle for survival such an effort should not be construed as an index of the fact that she has an independent source of income. So the contention of Mr. Roy cannot be accepted that the fact of her earning some money by working as a maid-servant in different houses should be taken as her independent source of income and that on that score she is not entitled to get any maintenance from the husband. Moreover, perhaps it has escaped the notice of Mr. Roy that it is the settled principle that it is the husband's burden of proof that the wife is not unable to maintain herself as alleged by him. In the abovementioned ruling of the Apex Court in its paragraph 7 it has been observed as follows: "The High Court unnecessarily put the burden on the wife to prove that she was unable to maintain herself. 'The words unable to maintain herself would mean available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive somehow. Section 125 Criminal Procedure Code is enacted on the premises that it is the obligation of the husband to maintain his wife, children and parents. It will therefore be for. him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them". It has been further held in the said ruling as follows: "Even though the wife was unable to prove that the husband had remarried, the fact remains that the husband was living with another woman. That would entitle the wife to live separately and would amount to neglect or refusal on the part of the husband to maintain her. The statement of the wife that she is unable to maintain herself would be enough and it would be for the husband to prove otherwise. Thus the above verdict of the Apex Court has settled the question first to the effect that the burden of proof that the wife has independent source of income is on the husband and secondly that the neglect of the husband in providing the maintenance to the wife should be construed where the wife was compelled to live separately from the husband for the reason that the husband was living with another woman. In the present case both these principles will foe applicable with full force, because the circumstances here are identical. Here also the wife petitioner alleged that the husband had married for the second time and under such circumstances* she would not come to the husband's house. In the evidence the wife has not been able to spell out the details of any alleged marriage and therefore it has been argued by Mr. Roy that the allegation of second marriage is totally a failure. But even if it is indicated from the materials on record that the alleged second marriage has not been established, even then from the "admission of the husband himself (vide bis testimony as O. P. W. 1) it is dear that one woman named Sima Haider has been looking after him for long ten years and, furthermore, from the evidence of P.W.2 it has been revealed that the said husband nominated this Sima Haider as the would be recipient of his provident fund amount and other retiral benefits. There has been no explanation in the evidence or in the pleadings as to under what circumstances the husband named such a female person who is neither a relation nor a man-fed wife of him as the nominee in respect of huge benefits and in the absence of such an explanation it must be presumed that he either has married her or has kept her as his mistress and in either case the, married wife will be entitled to have the presumption in her favour that the husband neglected to provide maintenance to her.;