JUDGEMENT 1. This revision is directed against an order dated 5-8-85 passed by the Sessions Judge Sonitpur at Tezpur in Criminal Motion No.121(D-2)84 whereby learned Judge having set aside the order of the Magistrate has awarded maintenance to the wife and children of the petitioner u/s. 125 of the Code of Criminal Procedure, 'the Code' for short. 2. It is a tragic story. Such tragedies are happening everywhere and almost daily. Smt. Tikamaya, the opposite party married the petitioner following the rites of Hindu Marriage. The husband promised before Almighty witnessed by the sacred fire (Homa) that he would share her sorrows, anxieties and care until death. He promised to share bread with her. The sacred promises, it seems are made to be breached. In the majority of cases it is trifle simple to find the guilty species. The stronger, the powerful, the Gods on earth are mostly found betraying the trust reposed on them by the soft hearted maidens. In most of the cases the victims are members of the weaker sex, who surrender their heart and soul and everything to their husbands who promise to husband them, to be abandoned flung away and jettisoned. Some are lucky to get some shelter. But what about the rest, the majority? How they eke out their living? I feel that responsible and venerable "social physicians", learned members of the legal profession and social workers can do a lot. The Constitutional mandates for providing legal aid should be made effective and real to provide justice and human dignity to the destitutes. The Fundamental duties spelled out in Art. 51 A of the Constitution obligate the State to serve the cause of the wretched, jettisoned and abandoned girls and women. Nothing efficacious and tangible has been done for the women and girls by the State. If it is the spirit of the Constitution to uphold the dignity of a citizen, I feel that the State is also obligated to perform the fundamental duty. The "justice delivery system" takes within its fold a very vast area comprising of the litigants, the lawyers, the judicial officers, the media, the social missonaries and all thinking persons and only a fragment falls outside the limit of the "Justice Delivery System". The "justice delivery system" takes within its fold a very vast area comprising of the litigants, the lawyers, the judicial officers, the media, the social missonaries and all thinking persons and only a fragment falls outside the limit of the "Justice Delivery System". We have won political freedom but our aspirations also include that freedom "where the mind is without fear and the head is held high; into that heaven of freedom let our country awake". Let me depart to enter into the merit of the case. 3. Smt. Tikamaya was aged 23 when she was thrown out by her husband as alleged by her. But, in the meantime she had five children born out of the wed-lock. She had to do household chores, and other duties and to rear up the children. Out of 5 children only two survived. When she lost her bloom and maiden beauty, the petitioner drove her out. She was either destined for red area or somewhere for her life and the children. Fortunately, she had her poor aged father. She and her two children took shelter in her father's house and filed a proceeding u/s. 125 of the Code' to get the statutory and rightful maintenance for her and his two minor children. The petitioner-husband appeared and filed his written statement. He admitted that Tikamaya was his legally married wife, Luckily owned the children as his, but claimed that he had never neglected to maintain his wife. The case of the husband was that the girl of her own accord had left the house, she was never ill-treated by him. 4. Learned Magistrate held that Tikamaya was legally married wife of Krishna Bahadur, the petitioner and the two children were born out of the wedlock. However, learned Magistrate came to the conclusion that the applicant could not give the exact income of Krishna Bahadur so the applicant and her children were not entitled to any maintenance. The applicant-wife had claimed Rs. 500/- as monthly allowance for her and the children in her application. The opposite party - husband was served with the copy of the petition, and was fully aware that the quantum of maintenance claimed by his wife was Rs. 500/- per month, but he did not contest that the amount claimed was excessive and beyond his means. Tikamaya examined herself and produced witnesses. The opposite party - husband was served with the copy of the petition, and was fully aware that the quantum of maintenance claimed by his wife was Rs. 500/- per month, but he did not contest that the amount claimed was excessive and beyond his means. Tikamaya examined herself and produced witnesses. Apart from filing the written statement the petitioner-husband did not adduce any evidence. Learned Magistrate dismissed the claim of Tikamaya only on the ground that the applicant had failed to prove that her husband had sufficient means to pay the claimed amount. On that ground alone learned Magistrate rejected the claim of Tikamaya. Somehow the wife managed to prefer a revision before the Court of Session against the order of dismissal of her prayer u/s. 125 of "the Code " and learned Judge held that all the essential requirements of S. 125 of 'the Code' were fully established and, accordingly learned Judge granted her maintenance @Rs. 200/- per month and @Rs. 100/- per month for the children. 5. The petitioner-husband could afford to marry Tikamaya. Also he willed to be father of five children. His wife and children lived under his care and he did maintain them. In this court a contention has been made that the petitioner-husband is unable to bear the brunt to pay a sum of Rs. 300/-per month as allowances to his wife and children, as he has had no much income. In short, the contention is that the order of learned Sessions Judge is wrong as there is no material adduced by the wife to prove the capacity of the husband and, pay the amount, and, therefore, she is not entitled to receive any amount not even the minimal amount to live and sustain herself and her children. 6. I find that the marriage has been admitted by the husband. I also find that the petitioner admits that the minor children were his off-springs. The wife had to take shelter in her father's house, as she had no means or income to maintain herself and the minor children. There is no material to show that the wife is able to maintain herself and her children. Now, the question posed is that there is no material produced by the wife to show that her husband had sufficient means to maintain the applicant and her children. There is no material to show that the wife is able to maintain herself and her children. Now, the question posed is that there is no material produced by the wife to show that her husband had sufficient means to maintain the applicant and her children. The fact that the husband married Tikamaya is a relevant material to hold that he married her having had the capacity to maintain her. The husband was responsible for bringing the children to the world. As such, the presumption ought to be that the prudent husband and father married and brought two innocent children having had the means to maintain them. Secondly, I find that there was no complaint by the wife that while she lived with her husband she and her children could not be maintained and looked after. Her allegation was that of torture and she was driven out. As such, the husband was competent and able to maintain her and the children, when they were living with him. So, why should he not pay the minimum amount for the sustenance of three lives? The most crucial fact against the husband is that the wife had claimed in her application that she was entitled to maintenance @Rs. 500/- per month. This assertion was made in writing as well as on oath. The husband received the copy of her application but did not contest that he was unable to pay that much amount. As such, it amounts to admission on the part of the husband that he was able to make the payment. Now, when the wife claims a fixed amount for maintenance and the husband does not contest that the claimed amount is beyond his paying capacity or means one must assume that it tantamounts to admission of the financial capability of the husband to pay the amount. Accordingly, I find that the claim of the wife for the fixed and named sum as the allowance must be accepted on the principle of "no contest". 7. Although the burden of proof to establish a case u/s. 125 of "the Code" is on the party who claims maintenance but the party is not required to prove its case beyond reasonable doubt. A proceeding u/s. 125 of "the Code" is not the prosecution of a criminal charge nor is the respondent an accused. The aggrieved party can establish its case on preponderance of probability. A proceeding u/s. 125 of "the Code" is not the prosecution of a criminal charge nor is the respondent an accused. The aggrieved party can establish its case on preponderance of probability. When the wife had claimed maintenance @Rs. 500/- p.m. and the respondent-husband did not contest the said claim and/or did not produce any material to establish his incapability to bear the burden, the court is bound to award maintenance at the rate of Rs. 500/- p.m. However, the petitioner-husband is lucky as learned Sessions Judge, instead of awarding Rs. 500/- as maintenance has reduced the claim to Rs. 300/- p.m. that is, a sum of Rs. 200/- per month to the wife and Rs. 100/- per month for the maintenance of the children. We must bear in mind human , psychology and behavioural probity in assessing the potency of the versions of the parties put forward in court. 8. For the foregoing reasons I hold that there is no force in the contention that the award is liable to be quashed in revision. Send the records to the learned Magistrate who shall take necessary follow up action to realize and pay the maintenance to the opposite party-wife. The opposite party-wife has not appeared in this Court and therefore an amicus curiae was appointed. He did not appear today. Under the circumstances I direct the learned Magistrate to issue notice to the husband to pay up the arrears and continue to pay the same as awarded by the learned Judge. On such payment learned Magistrate shall issue notice on the wife to receive the amount. If the petitioner-husband feels that the amount should be reduced he may make an application u/s.127 of "the Code" setting forth the grounds for such reduction or alteration. It is highly desirable that even at this stage there should be some efforts to settle up the matter so that the wife and children may honourably return back to the husband/father. 9. In the result the petition is dismissed. Petition dismissed.