LILAMOY GHOSH, J. ( 1 ) IN this revisional application, the only short point for consideration is whether the petitioner wife is entitled to get maintenance from the O. P. husband, Nikhilesh Dutta on the ground of the validity or otherwise of the marriage between the two. ( 2 ) THE petitioner wife filed the case under section 125 of the Criminal Procedure Code, for maintenance on the ground that her husband (O. P.) neglected to maintain her. The learned Sub. divisional Judicial Magistrate, Maldat allowed that petition and it was ordered that she would get maintenance at the rate of Rs. 100/- per month from the O. P. with effect from 25. 8. 1978. Against that, a revisional application was filed before the learned Sessions Judge. The learned Additional Sessions Judge, who heard the matter, allowed the application and set aside the order of the learned Magistrate. ( 3 ) BEING aggrieved the wife petitioner has come up in revision before this court. ( 4 ) MR. Sobbendu Sekhar Roy, the learned advocate appearing for the petitioner has contended that the learned Additional Sessions Judge should not have gone into the question of legality or validity of the marriage. He has taken me through the various parts in evidence) to demonstrate that the marriage as such has been proved abundantly. ( 5 ) MR. Ashish Kumar Sanyal, the learne4r advocate appearing for the O. P. husband has contended that the Learned Additional Sessions. Judge lightly set aside the order of the learned S. D. J. M. because the marriage between the petitioner and the O. P. was not valid, being barred by section 15 of the Hindu Marriage Act. Mrs. Pronoti Goswami, the learned advocate appearing for the State has supported the order of the learned Magistrate. ( 6 ) THE matter, as indicated, is now confined to the only legal point as to whether the validity or otherwise of the so called marriage can be gone into in a proceeding under section 125 of the Criminal Procedure Code, It is found that there is sufficient evidence that actually the marriage was contracted between the petitioner and the O. P. The learned Sub divisional Judicial Magistrate has recorded his finding that there was such marriage. He has also recorded that the wife had no sufficient means to live separately. He has also recorded that the wife had no sufficient means to live separately. The learned Additional Sessions Judge has not disturbed those findings of the learned Magistrate. He has set aside the order of the learned Magistrate on the sole ground that the said marriage was hit by the provision to section 15 of the Hindu Marriage Act. Now it is to be considered whether this approach of the learned Additional Sessions Judge is legally tenable. Upon a consideration of the relevant provisions of law and having in mind the essential perspective of the case it appears that the learned Additional Sessions Judge fell into a serious error. The marriage between the parties has been proved by evidence, as observed before. Now the foundation for the claim under section 125 of the Criminal Procedure Code is the contracting of marriage and maintaining a conjugal right factually irrespective of the legality or validity of the said marriage. Here the marriage has been held to be void on the ground that the marriage was contracted a few days before the prescribed period. That is no doubt a question regarding the validity of the marriage, but the validity is not the question here; in this proceeding the reality and the actuality of the marriage apart from the question of legality thereof, is the sole question. There has been enough evidence that there was marriage and that conjugal relationship was maintained. That should be sufficient foundation for allowing the petition for maintenance. The learned Additional Sessions Judge had committed a serious error of law in overlooking the actuality of the case which is the basis of the provision of section 125 of the Criminal Procedure Code. That is the only ground on which the learned Additional Sessions Judge has set aside the order. That ground of the learned Additional Sessions Judge being fallible, it cannot be allowed to stand and must be set aside. ( 7 ) THE revision application is allowed. The order of the learned Additional Sessions Judge dated 23. 12. 1980 setting aside the order of the learned S. D. J. M. allowed maintenance is set aside and the order of the learned S. D. J. M. allowing maintenance is restored. The rule is made absolute.