ORDER
Amareshwar Sahay, J.
1. Heard learned counsel for the petitioners and learned A.P.P. for the State.
2. In spite of fact that several times, notices were issued to the sole opposite party, but he did not care to appear. By the last order dated 22.2.2005, notice issued to the sole opposite party, was accepted as validly served, but even then, the opposite party has not appeared and, therefore, this application is being disposed of on the basis of materials available on record and after hearing the parties.
3. The petitioner have challenged the order dated 16.7.2002 passed by the Principal Judge, Family Court, Dhanbad, rejecting the petition under Section 125, Cr PC filed by the petitioners i.e. husband and wife. The opposite party is working in M/s. Bharat Coking Coal Ltd. and earning Rs. 5,000/- per month as per the statement of the petitioners.
4. From the impugned order, it appears that learned Spl. Judge, Family Court, Dhanbad, has rejected the prayer of the petitioners relying on the statement of A.W. 3, that the opposite party has entered into a second marriage and therefore, the applicants themselves left the sasural. In the light of such evidence, the Family Court held that it cannot be concluded that the opposite party has willfully neglected and refused to maintain the applicants on the ground that since the applicants in their own evidence, has stated that she is an earning member and hence, she is capable to maintain herself.
5. Learned counsel for the petitioners has drawn my attention to the statement of AW-3 wherein she has stated as follows :
“Abhi Sarswatt Devi apni maan ke ghar 2-3 saal se rah rahi hai, Bajah ki uska pati maikai se nahin le ja raha hai.
Amrit Bhuiyan apni patni kee dekh bhal nahin karta hai Who dusri sadi kar liya hai karib 3-4 saal pahle. Dusri patni Hazaribagh kee hai.
Sarswatt Devi bartan-chowka karke 150-200 rupaiya prati sapthahn kama letee hai.
Dusri sadi ke baad Sarswatt Devi khud apna sasural chorkar maike chali ayee hai. Sarswati Devi jab sasural jaati hai to pati apne saath sone nahin deta hai.”
6. Learned counsel for the petitioners has relied on a decision in the case of Rajathi v. C. Ganesan, and has submitted that if the husband was living with another woman, the wife is unable to prove the second marriage that would entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. Proviso to Sub-section (3) would squarely apply and justify refusal by the wife to live with her husband. It was further submitted that in the said decision that 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.
7. In the light of the aforesaid decision, learned counsel for the petitioners submitted that the learned Principal Judge has clearly committed an error of law on fact in refusing to allow the application for maintenance filed by the petitioners. The submission of the learned counsel for the petitioners appears to be correct, that the learned Principal Judge has not considered this aspect of the facts and law laid down by the Apex Court.
8. Accordingly, this application is allowed, the impugned order dated 16.7.2002 is hereby set aside and the matter is remitted back to the Principal Judge, Family Court, Dhanbad for a fresh decision in the light of the aforesaid Supreme Court’s decision and on the basis of the materials already on record within a period of one month from the date of receipt/production of a copy of this order.