Patna High Court
Smt. Mithu Devi vs Siya Choudhary on 28 March, 1974
Equivalent citations: 1975CRILJ1694
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
ORDER Nagendra Prasad Singh, J.
1. This application in revision Is directed against an order of Shree M.A. J. Khan, Magistrate, First Class, Bagusarai, dated the 26th December, 1970, rejecting the application of the petitioner for maintenance filed under Section 488(1) of the Code of Criminal Procedure (hereinafter referred to as the "Code").
2. The petitioner filed an application under Section 488(1) of the Code before the Sub-Divisional Magistrate, Begusarai, alleging herself to be the legally married wife of the opposite party and claiming Rs. 100/- per month as maintenance from him. According to the case of the petitioner, she was married to the opposite party in the year 1954 in accordance with the Hindu rites. They lived as husband and wife for some time when the opposite party brought in a second wife. After that, the opposite party started neglecting the petitioner. Since i960, he completely deserted the petitioner and refused to keep the petitioner with him at his residence in village Chakaur. The petitioner had no income of her own and she was in great distress and financial difficulties in maintaining herself. Lett with no option, she went to the house of her brother, who himself was (not?) in a position to properly maintain her. In the aforesaid petition, the petitioner stated in detail as to how the opposite party, having sufficient means, was neglecting her and had refused to maintain her, giving a cause of action to the petitioner to file the aforesaid petition.
3. In pursuance of notice, the opposite party appeared in the said proceeding. He admitted that the petitioner was his legally married wife and used to live with him; but due to the bad behaviour of the petitioner, the family life of the. opposite party became miserable. According to the opposite party, some time in 1958, the petitioner left his house with some clothes, ornaments and cash and went to the house of her brother without his knowledge and consent. The opposite party wanted to bring her back to his house, but the brother of the petitioner refused to allow the petitioner to go to his house. The opposite party also admitted that he had married for the second time and was living with his Second wife, and alleged that the petitioner had also remarried one Uttim Choudhary.
4. The learned Magistrate discussed the evidence adduced on behalf of both parties to find out whether the allegation of the opposite party that the petitioner had remarried one Uttim Choudhary of Hamharia in Sagai form was correct or pot; but he did not record any specific finding. In my view, the learned Magistrate has rejected the application of the petitioner merely op the ground that conjugal relationship between the petitioner and the opposite party had ceased since 1958 and the opposite party was living with his second wife separately from the petitioner. The learned Magistrate has further observed that the application, having been filed in 1970, long after separation, was not maintainable. He was also of the view that the mere fact that the opposite party got a second wife will not amount by itself to neglecting the petitioner, and, as such, the petitioner had not proved that the opposite party had neglected her or had refused to maintain her.
5. Learned Counsel for the petitioner has urged that the order passed by the learned Magistrate is bad in law inasmuch as application for maintenance under Section 488 of the Code cannot be rejected merely on account of delay in filing the application. He has also attacked the other reason given by the learned Magistrate for rejecting the application, namely, that the allegation of neglect and refusal by the opposite party is based only on the ground that the opposite party had married a second wife. In my opinion, there is substance in the contention of the learned Counsel for the petitioner. Section 488 of the Code provides a special summary procedure for maintenance of the wife or legitimate or illegitimate child who has been neglected or refused maintenance by the husband and/or father. The applicant under Section 488 of the Code has simply to prove that the person concerned, having sufficient means, neglects or refuses to maintain his wife or child. No period of limitation has been prescribed either under Section 488 or in any other provision of the Code for filing an application for maintenance. Generally, the application for maintenance under Section 488 of the Code is the last resort for the wife and the children, who are neglected or not maintained by their husband and father. In my opinion the learned Magistrate unnecessarily laid much stress on the delay in filing the application for maintenance. It is true that the provisions of Section 488 are available only to a legally married wife and the applicant must continue to be the wife on the day she files the application. On the other hand, if for one reason or the other she ceases to be the wife of the person from whom she claims maintenance, her application is liable to be rejected on that ground alone. In the instant case, the learned Magistrate has not given any categorical finding as to how the petitioner ceased to be the legally wedded wife of the opposite party. Some evidence was, no doubt, led on behalf of the opposite party in support of his allegation that the petitioner had remarried Uttim Choudhary of Gambaria in Sagai form. But, in my opinion, that case has not been accepted by the learned Magistrate, because there is no categorical finding on that point. The onus to prove that there has been a valid second marriage of the petitioner was on the opposite party. In the absence of proof of second marriage of the petitioner, in the eye of law she will continue to be the legally married wife of the opposite party entitled to be maintained by him, if the conditions prescribed by Section 488 of the Code are fulfilled. The requirement of Section 488(1) are that the applicant must be the wife of the person from whom she claims maintenance and that tie husband, having sufficient means, neglects or refuses to maintain the wife. Sub-section (4) of Section 488 reads as follows:
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
This sub-section is in the nature of a proviso to Sub-section (1) of Section 488. It envisages that if, without any sufficient reason, she refuses to live with her husband, she would not be entitled to receive maintenance from her husband. The case of the opposite party in the instant case appears to be that the petitioner had refused to live with him without any sufficient reason. On the other hand, the case of the petitioner, as made put in her application as well as in evidence, is that she was willing to live with the opposite party, but he had refused to maintain her as his wife; over and above, he had married a second wife with whom he was living.
6. Learned Magistrate has relied on a decision of this Court in Subhagi Devi v. Murli Pradhan AIR 1968 Pat 139 : 1968 Cri LJ 539 for holding that the mere fact that the opposite party had got another wife will not be a sufficient reason or just ground for the petitioner to refuse to live with the opposite party. In that case, the proviso to Sub-section (3) of Section 488 of the Code was interpreted. That proviso is in the following words:
Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
If a husband has contracted marriage with another wife or keeps a mistress it should be considered to be just ground for his wife's refusal to live with him.
In that case it was contended on behalf of the wife that it was a just ground for her to refuse to live with the husband if he had contracted marriage with another wife or had kept a mistress, as envisaged by the aforesaid proviso. G.N. Prasad, J, took the view that the proviso was not attracted at the time of the passing of the initial order under Sub-section (1) of Section 488 of the Code and that Sub-section (3), including its two provisos, comes into play only after a person has failed, without sufficient cause, to comply with an order passed against him under Sub-section (1) of the Code.
7. My attention has, however, been drawn by the learned Counsel appearing for the petitioner to the case of Abdul Ghaffar v. Bibi Hafiza Khatoon (2) where his Lordship (G. N. Prasad, J.) held that, if the husband contracts a second marriage with another wife or keeps a mistress, it shall be considered a just ground for the wife to refuse to live with him. His Lordship further observed:
In my opinion, even where a husband takes a second wife with the permission of his first wife, the first wife would have a just ground for refusing to live with him am in such circumstances she would be entitled to claim maintenance from her husband without proving neglect of her on the part of her husband.
8. Learned Counsel for the petitioner has also drawn my attention to the case of Surya Narayan Bharbey v. Sobha Devi 1972 BLJR 383 where C. P. Sinha, J. held that, where the husband had taken a second wife which justified a separate residence by the first wife, offer of the husband to maintain the first wife only on the condition of her living with him would amount to his neglect and refusal to maintain her within the meaning of Sub-section (1) of Section 488 of the Code.
9. In my opinion, there is some conflict in the decision in the cases of Subhagi Devi (196S Cri LJ 539) (Pat), Abdul Chaffar 1968 Cri LJ 1110 (2) (Pat) and Surya Narayan Bharbey 1972 BLJR 383 (supra). But, on the facts and in the circumstances of the case in hand, the decision in Subhagi Devi is not at all applicable because in that case the Magistrate had recorded a clear finding against the wife that her allegation of neglect or refusal on the part of her husband had not been proved. It was also held that it had not been proved that the wife had beep turned out of the house of the husband; rather, it had been proved that the wife had deserted the husband and left his house during his temporary absence and thereafter the husband had made several attempts to bring her back, but that was of no effect Ultimately, the husband was compelled to take another wife. It was also held that the husband was not possessed of sufficient means, These findings of fact were not questioned before this Court. In the case in hand the Magistrate has not recorded any finding on the allegation of the petitioner that she had been neglected and refused to be maintained by the opposite party. Merely because the petitioner was living at the place of her brother would not justify rejection of her application for maintenance. As was held in the case of Indradeo Mahto v. Smt. Phulia Kuer 1968 Pat LJR 213 if the wife was wilfully neglected by the husband, that was a just and sufficient reason for the wife to refuse to live with the husband because of the provisions of Section 18(2) of the Hindu Adoptions and Maintenance Act. Sub-section (2) of Section 18 reads as follows:
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of wilfully neglecting her:
* * *
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
* * * * A bare reference to Clauses (a) and (e) above will show that a wife is entitled to live separately from her husband, without forfeiting her claim to maintenance under the law by which she is governed, if she has been deserted abandoned or neglected, without reasonable cause, by her husband.
10. In my opinion, the learned Magistrate should have taken into account the evidence adduced on behalf of the petitioner regarding the neglect and refusal on the part of the opposite party to maintain her. The petitioner had not rested her case only on the ground of the second marriage by her husband, but also on the ground that she was neglected by her husband, In that view of the matter, the impugned order of the learned Magistrate has got to be set aside and the case remanded to him for a fresh decision in accordance with law. The learned Magistrate will hear the parties and, on a consideration of the materials on record, will decide as to whether the allegation of the petitioner that she had been neglected by the opposite party and he had refused to maintain her was correct or not. If he holds in Favour of the applicant, then he will also consider whether the opposite party has sufficient means and in spite of that he has neglected or refused to maintain the petitioner.
11. In the result, the application is allowed, the impugned order of the learned Magistrate is set aside and the case is sent back to him for a fresh disposal in accordance with law in the light of the observations made above.