JUDGMENT : G.B. Patnaik, J. - The legally married wire of opposite party is the Petitioner against the order of the Sub-Divisional Judicial Magistrate, Bargarh, who has dismissed her application for maintenance filed u/s 125 of the Code or Criminal Procedure (hereinafter referred to as the "Code"). The Petitioner filed the petition alleging that she married the opposite party in 1969 and continued to live happily for about four years. Thereafter, the opposite party started ill-treating her and assaulted her and ultimately drove her out of his house and left her in her parents' house. She was not taken back by her husband (opposite party) in spite of her best efforts. Ultimately, her husband has married to another lady called Mumudini, daughter of one Ratra Pradhan of village Hilminda. The Petitioner claimed that the opposite party had about 11 acres of landed property and should pay a maintenance allowance of Rs. 250/- per month. The opposite party admitted the Petitioner to be his legally married wife but denied all other allegations made in the petition. According to the opposite party. it is the Petitioner who herself went away to her parents' house and wilfully does not come to her husband and, therefore, she is not entitled to receive any maintenance u/s 125 of the Code. The learned Magistrate after examining the evidence adduced in the case came to the conclusion that the Petitioner could not prove that she was ever ill-treated or assaulted by the opposite party and further the Petitioner had been driven away from the house of the opposite party at the instance or the opposite party, as alleged by her. According to the learned Magistrate, the Petitioner, therefore, is not entitled to get the maintenance allowance. So far as the allegation of second marriage of the opposite party with Kumudini is concerned, the learned Magistrate has held that the Petitioner has failed to prove the alleged second marriage of the opposite party. On these findings, the application for maintenance has been rejected. 2. Mrs. Pad hi appearing for the Petitioner contends that the basic approach of the learned Magistrate in appreciating the evidence has become erroneous which has vitiated the conclusions and, therefore, this Court should interfere with the order of the learned Magistrate. Mr. On these findings, the application for maintenance has been rejected. 2. Mrs. Pad hi appearing for the Petitioner contends that the basic approach of the learned Magistrate in appreciating the evidence has become erroneous which has vitiated the conclusions and, therefore, this Court should interfere with the order of the learned Magistrate. Mr. Behura, the learned Counsel for the opposite party, on the other hand, contends that in the absence of proof of neglect by the husband, if a wife deserts her husband and remains in her father's house at her sweet will, she is not entitled to get any maintenance u/s 125 of the Code and consequently the order of the learned Magistrate is unassailable. 3. To attract the provisions of Section 125 of the Code, it is necessary to establish that a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. Sub-section (4) of the said section provides that a wife who is living in adultery or without sufficient reason refuses to live with her husband or if they are living separately by mutual consent, will not be entitled to receive any allowance from her husband. This provision provided as a speedy remedy against starvation by way of a summary procedure. It is not co-extensive with the civil liability of a husband. It gives effect to the fundamental and natural duty of a man to maintain his wife. The basic idea behind this provision is that no wife should be left helpless so that she may be tempted to commit crime. This provision enables a Magistrate to take summary action for prevention of destitution. 4. That the Petitioner is the legally married wife of the opposite party is an admitted fact. It, therefore, remains to be considered whether on the evidence adduced, the Petitioner has been able to establish that her husband, the opposite party, refuses or neglects to maintain her and she is unable to maintain herself. After perusing the order of the learned Magistrate, I am of the view that the basic approach of the Magistrate is erroneous. It, therefore, remains to be considered whether on the evidence adduced, the Petitioner has been able to establish that her husband, the opposite party, refuses or neglects to maintain her and she is unable to maintain herself. After perusing the order of the learned Magistrate, I am of the view that the basic approach of the Magistrate is erroneous. While appreciating the evidence, the learned Magistrate has been swayed away by three features appearing in, the case, namely: (a) Since admittedly, the parties have been staying apart since 1972, and no application for maintenance was filed till 1979, until the alleged second marriage by the husband was taken, it must be held that she has not given any importance to the assault and ill-treatment of her husband. Rather she gives more emphasis to the second marriage of the opposite party with Kumndini. In my view, this is totally an erroneous approach in appreciating the evidence in the case. The delay in filing of an application for maintenance cannot be a ground for rejecting the same, Nor can it be said that the delay amounts to waiver of the right of the wife to get maintenance u/s 126 of the Code. (b) The learned Magistrate has given undue weight to the so-called notice by the husband to the wife asking her to join him in his house. In my opinion, the so-called notice is nothing but a camouflage. A husband who has never cared to drop in for a moment for so many years after his wife lived apart, must be held to be a person who has neglected his wife and has not discharged his obligation as a husband. The relationship between husband and wife is such that the sincerity. of the husband to bring back his wife can be demonstrated by the conduct of the husband and not by issuing a notice which is nothing but a piece of evidence being created to be utilised in evevent of any litigation. (c) The learned Magistrate has disbelieved the allegation of assault by husband on the ground of lack of corroboration to the same. If a husband assaults his wife inside his bed room, then (sic) evidence can be available. (c) The learned Magistrate has disbelieved the allegation of assault by husband on the ground of lack of corroboration to the same. If a husband assaults his wife inside his bed room, then (sic) evidence can be available. Since in my view the basic approach in appreciating the evidence has become erroneous which has vitiated the conclusion, I would examine the evidence to find out whether the ingredients of Section 125 of the Code have been satisfied or not. 5. The wife has examined herself as P.W. 2. She has categorically stated that her husband brought her to her mother's house and left her there and thereafter did not come to take her back. She also stated that her husband ill-treated her, abused her and assaulted her blaming her as a barren lady. According to the learned Magistrate absence of any extraordinary injury during assault and no outsider having seen the assault, the story of assault is not believable. The learned Magistrate has failed to bear in mind that he was considering the ill treatment and assault by the husband years back, that is when the husband left his wife in her mother's house. P.W. 3 stated in his evidence that the Petitioner had narrated before him about the, ill-treatment of her husband. P.W. 3 is a close neighbour of the opposite party. He is a retired Government officer. It is quite natural for the Petitioner to make that grievance before P.W. 3 when she was being ill-treated by her husband. P.W. 3 happens to be the uncle of the opposite party. There is no reason why the statement of P.W. 3 should be discarded from consideration. P.W. 4 stated if his evidence that the Petitioner was driven out by her husband since she did not give birth to any child. He is basically a witness to prove the second marriage of the opposite party with Kumudini and I shall discuss that part of the evidence later on. Apart from the oral evidence of P.Ws. P.W. 4 stated if his evidence that the Petitioner was driven out by her husband since she did not give birth to any child. He is basically a witness to prove the second marriage of the opposite party with Kumudini and I shall discuss that part of the evidence later on. Apart from the oral evidence of P.Ws. 1, 3 and 4 regarding the ill-treatment and assault by the husband-opposite party, it transpires from the evidence that though the Petitioner wife is staying in her mother's house since 1974, yet till the date of filing of the application for maintenance, the husband has never bothered to pay a visit to her nor has he sent a single farthing to the wife for all this time. This conduct of the husband goes a long way to prove the wife's case. On the evidence adduced in this case, I am, therefore; of the opinion that the opposite party has neglected and refused to maintain his wife. 6. The Petitioner in her evidence has categorically asserted that she has no means to maintain herself. No materials have been proved by the opposite party to rebut the said statement of the Petitioner. She has been staying in her mother's house for a pretty long period. The conclusion, on the materials on record, is irresistible that the Petitioner has been able to prove that she is unable to maintain herself. 7. Thus two of the ingredients to attract Section 125 of the Code have been established and the only other in wedient necessary is whether the husband has sufficient means. From the paroha (Ext. 1) filed by the Petitioner, it appears that the opposite party along with his, other co-sharers have about 10 acres of land. According to the Petitioner) the opposite party's share is about 5 acres of land. A husband owning 5 acres of land must be considered to have sufficient means to maintain his wife within the meaning of Section 125 of the Code and thus even the third ingredient of Section 125 has been established by the Petitioner in this case. No doubt, the opposite party has also given some evidence to disprove the allegation of ill-treatment but in view of the cogent and consistent evidence adduced by the Petitioners this regard, I must hold that it overweighs the evidence adduced by the opposite party. No doubt, the opposite party has also given some evidence to disprove the allegation of ill-treatment but in view of the cogent and consistent evidence adduced by the Petitioners this regard, I must hold that it overweighs the evidence adduced by the opposite party. In the result, therefore, disagreeing with the learned Magistrate, I must hold that the Petitioner wife is entitled to receive maintenance from her husband (the opposite party). 8. So far as the Petitioner's allegation of opposite party marrying for the second time is concerned, the learned Magistrate after considering the evidence bas come to the conclusion that the Petitioner has failed to establish the same. After perusing the evidence, I am also of the view that the Magistrate's conclusion in this regard cannot be assailed in this revision. 9. Then, comes the question of quantum. The opposite party is the owner of five acres of land. The exact income from the said land has not been established, but in my view five acres of land is sufficient to maintain a family consisting of the (sic) and wife. In the absence of any evidence as regards the exact income from the landed property, some amount of guess work is imminent while assessing the quantum of maintenance. Keeping in view of the present day cost of living, in my opinion, maintenance of rupees one hundred per month would be fully justified. Accordingly, I hold that the Petitioner is entitled to receive maintenance from the opposite party at the rate of Rs. 100/- (rupees one hundred) per month from the date of the application filed by the Petitioner. The opposite party should pay the arrear maintenance within a period of three months from the date of this order and should pay the monthly maintenance regularly to the Petitioner. This Criminal Revision is accordingly allowed. Final Result : Allowed