P.N. Mookerjee, J. - (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 August 9, 1954. Chunder, J., issued the Rule only on Ground No. 1, which runs as follows: "For that the learned Magistrate had no jurisdiction to entertain the proceeding and the order is void."
(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: (1) That the parties were duly married to each other several years back and they have two daughters, who are admittedly minors, by such marriage. (2) That, some years later, the petitioner husband brought in the house another lady who, according to him, was his married wife but, according to the opposite party (wife), his mistress. The actual status of this lady is not, however, of much importance for our present purpose. (3) That the opposite party (wife) left the petitioner's house with her two children (daughters), primarily because of the presence of the other lady, referred to above, and the petitioner (husband) refused to give her separate maintenance except, possibly, shortly before the institution of the present proceedings, but this offer does not seem to be bona fide and his money order was quite properly refused by the applicant wife. The specific allegations of cruelty and ill-treatment made by the opposite party, do not however, appear to have been sufficiently proved, nor does the husband's allegation that the wife surreptitiously left his place after misappropriating his money appear to be true or worthy of much credence. (4) That the petitioner has no place of residence in Calcutta and the parties last resided together at the petitioner's house at Agarpara, P.S. Khardah, within the jurisdiction of the Barrackpore Court, and, (5) That the petitioner carries on the business of a clearing agent under the name and style of "P.G. Modak & Sons", having office in the shape of 'two desks' at the Customs Office (Custom House), at 15, Strand Road, Calcutta. In the light of the above facts, I have to examine Mr. Dutt's contentions and to decide whether the present Rule should be allowed to succeed on any of them.;