29.07.2026 Serial no. 08 [Srimanta] Ct. No. - 29 CRR 1954 of 2025 In re : An Application under Section 528 of the Bharatiya Nagarik Sureaksha Sanhita, 2023 read with Section 482 of the Code of Criminal Procedure, 1973 -And- In the matter of : BAISAKHI BERA … … Petitioner. Mr. Sabyasachi Mukherjee, Ms. Swastika Saha, Advocates … … For the Petitioner. Mr. S. R. Saha, Advocate ……For the Opposite Party. 1. In this application, the petitioner has prayed for setting aside the order dated 31st January, 2025 passed by learned Judicial Magistrate, 3rd Court, Barrackpore in M. Case No. 590/2023. By the impugned order learned Court below has rejected the petitioner/wife’s prayer for maintenance on the ground that she was once found living in adultery though he granted interim maintenance of Rs.5,000/-each per month to the two minor children to be paid within 10th day of every month. 2. Being aggrieved by the aforesaid order, learned Counsel for the petitioner submits that the Court below erred in observing that the petitioner has not come before the Court with clean hands and he further erroneously observed that she has claimed that on 22.11.2022 she was driven out 2 from her matrimonial home by the opposite party and his family members but in reality on the same date she was found living in adultery and which is the sole ground for refusing petitioner’s prayer for interim maintenance. 3. In this context, petitioner relied upon a Judgment of K. Veeriah –Vs.- Muthulakshmi of Madras High Court and contended that only when the husband proves satisfactorily beyond reasonable doubt that his wife was living in adultery, she will not be entitled to any maintenance but not otherwise. When the allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of ‘living in adultery’. He further submits that the words ‘living in adultery’ must be interpreted to mean that the wife has been continuously living in adultery shortly before the application was made. Therefore, the Court below was not justified in rejecting the petitioner’s prayer for interim maintenance without giving the petitioner an opportunity to rebut the presumption in connection with the alleged solitary incident dated 22nd November, 2022. Therefore, the order impugned which pertains to refusal of petitioner’s maintenance is not sustainable in the eye of law. 3 4. Learned Counsel appearing on behalf of the opposite party submits that beside the maintenance amount awarded to the children, the husband is paying more amount for education of the children and also for their livelihood and, therefore, the instant application is not sustainable in the eye of law. 5. Having heard learned Counsel for the petitioner and the opposite party and also on perusal of the affidavit of assets and liabilities filed by the opposite party herein before the Trial Court, it appears that the opposite party herein has shown his basic income as Rs.48,200/- per month. 6. Therefore, since the allegation of the opposite party that the petitioner is living in adultery has not been substantiated as yet by way of cogent evidence, I find that the petitioner is also entitled for interim maintenance. 7. In such view of the matter, the instant application being CRR/1954/2025 is hereby disposed of with a direction upon the opposite party herein/husband to pay Rs.7,000/- per month towards interim maintenance to the petitioner along with Rs.5,000/- each for two children as awarded by the Trial Court within 10th day of every succeeding month from the date of filing of the application for maintenance before the Trial Court till further order. 8. The Trial Court is requested to expedite the final hearing of the maintenance proceeding and to make his best 4 endeavour to conclude the entire proceeding preferably within a period of six months from the next date of hearing. (Dr. Ajoy Kumar Mukherjee, J.)