A.N.BANERJEE, J. - (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 of the opposite 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 findings the learned Magistrate proceeded to discuss the financial condition of the parties and on a consideration of such condition he allowed the maintenance at rate as stated above.
(3.) MRS . Mukti Moitra, learned Advocate appearing for the petitioner husband, took threefold 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 some how maintaining herself indicating thereby that it is not the case that she was unable to maintain herself. Her last point was that in any even the quantum of maintenance as assessed by the learned Magistrate is much too excessive and disproportionate to the income of the petitioner. Mrs. Sukiron Biswas, learned Advocate appearing for the wife opposite party supported the case of the learned Magistrate. Having heard the learned Advocates of the respective parties and on a consideration of the materials before me I see not much substance in the first four objection raised by Mrs. Moitra. It may be that a matrimonial suit for Divorce is pending. But that does not prevent the wife from claiming maintenance in a proceeding under section 125 of the Code of Criminal Procedure no matter whether she has claimed or not any alimony pendente lite in the matrimonial proceeding. I am further of the view that the learned Magistrate was justified in finding that the wife opposite party was not in a position to maintain herself. It may be that the wife in her evidence stated that she was somehow maintaining herself. But her evidence and that of her brother as well, make it abundantly clear that she is living on the charity of her brother. There can be thus no manner of doubt that she is unable to maintain herself. On the question of refusal and the neglect to maintain her, Mrs. Moitra has not said anything. Now coming to the question of the quantum of maintenance. I am of the view that having regard to the status of the parties and the financial condition of the husband, ends of justice would he sufficiently met if the order of the learned Magistrate is modified to this extent only, namely that the opposite party wife will get maintenance at the rate of Rs. 70/ - per month and that the order of the learned Magistrate will become effective from the date of the passing of the order that is to say 20 -1 -78. With the above modifications of the impugned order of the learned Magistrate, the Rules is disposed of. Order accordingly.;