Jyotirmoyee Nag, J.
1. This Rule is directed against an order of maintenance passed by the learned Magistrate under Section 125 of the Code of Criminal Procedure awarding a sum of Rs. 500/- to the petitioner's wife per month and Rs, 250/- for each of the two children per month, as maintenance.
2. The case of the opp. party wife is that she was a refugee from Sind and she became acquainted with the petitioner at Baroda from where she came away with him to Calcutta and as he was a Muslim, she agreed to be converted to Islamism and she married him, thereafter according to Muslim rites and customs. Thereafter, she lived with him for long 21 years and bore him three daughters, and a son who died. The daughters were born in 1963, 1965 and 1967 respectively. The opposite party wire's case further is that the petitioner is very well to do man having a Cinema house and several race horses and a five storied building which fetches him very handsome amount, as rent. Further being a business man he has a really good income. That while the opp. party lived with the petitioner as husband and wife, he used to pay her for family expenditure a sum of Rs. 1.500/- per month, but since 1975 the petitioner has ceased to pay any maintenance to her as a result, she having no income of her own is somehow managing to maintain her family upon the charity of her relations and friends and by selling her valuables. The case of the petitioner is that it is false to say that he has married the opp. party or that the children have begotten by him. In fact, he denied knowing any lady by the name of Noorjahan. That the opp. party is out to black mail him in order to extort money from him.
3. Mr. Prasun Chandra Ghose appearing for the petitioner has submitted that the opp. party and the children are not entitled to maintenance inasmuch as it has neither been proved that the petitioner has married the opp. party or that the children are begotten by him. The opp. party has failed to adduce evidence of Maulabis who performed the marriage ceremony according to Mohammedan Law nor has she produced any witnesses who were present at the time of marriage. She has miserably failed to produce any document relating to marriage contract or for the matter of that, any document relating to dower etc. Therefore, the marriage being denied by the petitioner the onus to prove the same is on the opp. party, failing which there cannot be any finding that the opp. party is legally married wife of the petitioner nor the children have been begotten during the subsistence of valid marriage. Mr. Ghose however has overlooked certain evidence which in absence of proof of marriage by direct evidence constitutes proof by indirect or circumstantial evidence. Under the Mohammedan Law a valid marriage may be proved either by direct evidence or may be presumed (1) from continued cohabitation as husband and wife, (2) from an acknowledgment by the man : (a) That the woman is his married wife provided that a marriage between them is not unlawful or (b) that the children of the woman are his children provided that the acknowledgment satisfies the condition as follows:
An acknowledgment, express or implied, by a person who is of sound mind that another person is his child or that the mother of the child is his wife by a valid marriage confers upon such child the status of legitimacy provided that the following conditions are satisfied; (a) that the marriage is not disproved; (b) that the acknowledgement is one of the legitimacy of the child; (c) that the relationship is not impossible by reason of disparity between the ages or otherwise; (d) that the person acknowledged, if he has attained discretion, does not repudiate the acknowledgment. It is well settled law that the presumption is always in favour of marriage and against concubinage when the person has been living with the woman as husband and wife for a large number of years. In this connection, support is to be had from the following cases L e. (1912) ILR 39 Cal 492 (PC) AIR 1937 Sind 126 AIR 1966 J and K 75 at p. 77 AIR 1929 PC 135 AIR 1921 Lah 20 AIR 1952 SC 231 (1918) 46 Ind Gas 913 (JC's Court Nagpur)- These presumptions are not only admissible under Mohammedan Law but also under the Section 114 of the Evidence Act. The continued cohabitation by itself may not be sufficient but there must be circumstances from which it could be reasonably inferred that it was cohabitation as between husband and wife and there was treatment tantamount to an acknowledgement of the fact of marriage and of the legitimacy of the children. The presumption of marriage may also be made it a person acknowledges either, that the woman is his wife or that any children born to the woman are his children, Now to come to the evidence on the basis of the principles laid above it will be found that the petitioner had acknowledged the opposite party to be his wife vide evidence of P. W. 3 and further there is the evidence of P. W. 4 and besides that of P. W, 3. The latter that he has seen the petitioner living with the opp. party as a family with the children. It has also been proved that the petitioner acknowledged his daughters namely, P. Ws. 2, 5, 6 ...as his children by signing in the admission forms as father of the children. P. Ws. 1 and 9 have deposed to that effect and signatures in Exts. 1, 2 and 3 in the school admission register are proved to be signatures of the petitioner's acknowledging P, Ws. 2, 5 and 6 as his children. The learned Magistrate was therefore, quite right in coming to the finding that the opp. party is the wife of the petitioner and also the children are begotten by him during the subsistence of a valid marriage between the parties particularly as the presumption has not been repudiated by either documentary or oral evidence adduced on behalf of the petitioner. It is significant to note that the petitioner who was present throughout the period the evidence was recorded in the case did not examine himself nor has there been any challenge by cross-examination, that there was no marriage. The findings of the learned Magistrate on these two points are accordingly upheld. It is contended by Mr. Ghose appearing for the petitioner that in any event, the learned Magistrate erred in giving maintenance allowance at the rate, already mentioned. According to him, the rate of maintenance given is too excessive inasmuch as there is no finding about the income of the petitioner. Some of the witnesses have no doubt stated that he was the owner of several race horses but when, at what period, he had them, is not made clear from the evidence. One witness particularly P. W. 4 has stated that the petitioner has only 1/4th share in a race horse and as such the evidence of the witnesses that to maintain a race horse it costs Rs. 500/- to 700/- per month is of little value to prove the income of the petitioner. So far as income of the cinema house is concerned, the opp. party has not been able to prove that he is still the proprietor of the cinema house, by any documentary evidence. True, but it is sufficient however to hold on the evidence of P. W. 9 the opp. party who was not cross-examined on the point that he is still possessing the cinema house and to find that he is the owner of the cinema house, but what the income from the cinema house is, no witness has been able to prove. Be that as it may, there is no denying that he is the owner of a 5 storied building which fetches him a good income and that he has all along been able to maintain the opp. party and the children when he lived with them as one family by maintaining a high standard of living. This last fact shows that his income is sufficient to maintain his family. In the circumstances, I uphold the finding of the learned Magistrate so far as the children are concerned regarding the quantum of maintenance but so far as opp. party herself is concerned, I think the ends of justice will be met by awarding her maintenance allowance at the rate of Rs. 250/- per month,
4. Mr. Bijay Bhose, learned Advocate, appearing for the opp. party has contended that the learned Magistrate should have granted the maintenance from the date of application and not from the date of order passed by him. It appears from the records that the opp. party was trying to maintain herself by selling her ornaments and also asking friends and relations for funds to maintain the family. It also appears from the evidence that the eldest daughter Sophia was a minor at the date of the application made on her behalf by the opp. party. But she has married since and that is the reason why the learned Magistrate did not grant any maintenance to her. Though it was not on record at the time the learned Magistrate passed the order of maintenance that Sophia's marriage has since been dissolved under very painful circumstances, and she is a liability of the opposite party yet. On a consideration of all other facts, I think the order of maintenance should be made from the date of the application and not from the date when the order was passed. Accordingly, I modify the order of the learned Magistrate to that extent.
5. The petitioner will pay the maintenance allowance to the opp. party for herself as well as for the children at the rate as ordered above by money order, so as to reach the opp. party by the 15th day of each succeeding month. The petitioner will also pay a sum of Rs. 500/- (Rupees five hundred) along with current maintenance until the arrears are liquidated.
6. The Rule is accordingly discharged.
7. Let the records go down immediately.