Patna High Court
Abdul Ghaffar vs Bibi Hafiza Khatoon on 1 August, 1967
Equivalent citations: AIR1968PAT307, 1968CRILJ1110, AIR 1968 PATNA 307
ORDER G.N. Prasad, J.
1. This application arises out of a proceeding under Section 488, Code of Criminal Procedure, instituted by Bibi Ha-fiza Khatoon, the opposite party, who is the wife of the petitioner, Abdul Ghaffar.
2. The wife filed her petition for maintenance on the 30th March 1964 alleging that her husband took a second wife in the year 1958, and that since 1962, he began to neglect her and turned her out of his house, compelling her to take her asylum in her father's house. Accordingly, the petitioner was called upon to show cause as to why he should not be ordered to pay maintenance to the lady. The petitioner appeared and filed his show cause in which he opposed the claim of maintenance on various grounds. In due course, both parties led evidence in support of their respective cases. After considering the materials on the record, the learned Magistrate came to the conclusion that Bibi Hafiza Khatoon was entitled to receive maintenance from the petitioner, and accordingly, he passed an order directing the petitioner to pay her a sum of Rs. 51.50 per month with effect from the 30th March 1964, which was the date of her petition.
3. Against the order of the learned Magistrate, the petitioner filed a revision before the Sessions Judge of Gaya, but the learned Judge by his order dated the 9th March 1966 declined to interfere. The petitioner, accordingly, filed the present revision application in this court on the 5th May 1966.
4. The first contention of Mr. Safadar Imam in support of this application is that the order of the learned Magistrate is wholly without jurisdiction, inasmuch as, the Gava Court had no jurisdiction to entertain the petition for maintenance. Reliance was placed upon Sub-section (8) of Section 488 of the Code which provides that proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child. In support of this contention Mr. Imam referred to the second paragraph of the petition filed by the opposite party in the court of the Sub-divisional Magistrate at Gaya, where she stated:
"That the opposite party is a Crane Driver under Carriage Foreman at Meghal Sarai and drawing a monthly salary of Rs. 225/-."
It is therefore, contended that no proceeding under Section 488 could have been taken against the petitioner in the district of Gaya where, upon the wife's own case, he did not reside or was, and there is also no allegation that the petitioner had last resided with the opposite party in the district of Gaya. In this context Mr. Imam drew my attention to G. Benbow v. W. Ben-bow, (1897) ILR 24 Cal. 638, where it was held that if a person neglects or refuses to maintain his wife, the proper court to take cognizance of the complaint of the wife is the court within the jurisdiction of which the husband resides. Mr. Imam also relied upon Ghulam Hussain v. Musammat Hakana Bibi, 27 Cri LJ 1009 : (AIR 1926 Lah 663).
5. It will, however, be observed that in both these reported cases, the question of jurisdiction was raised in the first court itself. In Benbow's case, (1897) ILR 24 Cal 638. the question of jurisdiction was raised by the Chief Presidency Magistrate himself while considering the question as to whether he should issue a summons calling upon the husband to attend in his court and show cause why he should not maintain his wife. The wife was at Calcutta, but the husband was living in Assansole. Accordingly, the learned Magistrate made a reference to the High Court observing " The first process calling on the husband to maintain his wife should therefore, be sought in the district in which the obligation is prima facie to be fulfilled, i.e.. in the district in which the husband resides". The High Court held that the Presidency Magistrate had taken a right view in the matter. In the instant case, it does not appear at all that the petitioner had raised any objecttion to the exercise of the jurisdiction over the case by the Gaya Court. In answer to the summons which was issued to him, the petitioner, appeared and filed his show cause petition, but in that petition he raised no objection on the score of the jurisdiction of the Gaya Court. The order of the learned Sessions Judge also does not indicate that the petitioner had raised the question of jurisdiction there. The question of jurisdiction has been raised by the petitioner for the first time in this court. Benbow's case, (1897) ILR 24 Cal 638, therefore, can be of no avail to the petitioner at this stage. In Ghulam Hussain's case. 27 Cri LJ 1009 : (AIR 1926 Lah 663), the case had proceeded ex parte, inasmuch as, the summons issued against the husband could not be served before the order awarding maintenance to the wife had been passed. Subsequently, when the husband's property was attached in execution of the maintenance order, then he applied for the order of maintenance being set aside on the ground that the court which had passed the order had no jurisdiction over the matter since the husband, at the relevant time, was residing in a different district. In other words, the question of jurisdiction was raised by the husband in the first court itself, and not for the first time in the High Court, as in the present case. The situation would undoubtedly have been different if the petitioner had raised the question of jurisdictipn in the first court itself. But the petitioner chose not to do so and on the contrary, he submitted to the jurisdiction of the Gaya court and invited it to decide the proceeding in his favour on various grounds, in support of which he also adduced his evidence in the Magistrate's court. To a case like the present, the provisions of Section 531 of the Code must undoubtedly be attracted. Section 531 is designed to meet such a contingency and provides that "no finding, sentence or order of any criminal court shall be set aside merely an the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice."
Neither the Calcutta Court in Ben-bow's case, (1897) ILR 24 Cal 638 nor the Lahore Court in Ghulam Hussain's case, 27 Cri LJ 1009 : (AIR 1926 Lah 663) had occasion to consider the application of Section 531 for the simple reason that the objection as to the jurisdiction was raised in the first court itself. Therefore, neither of these two reported cases preclude me from considering the applicability of Section 531 to the facts and the circumstances of the present case. In view of Section 531, therefore, I would not be justified in setting aside the impugned order of the learned Magistrate merely on the ground that the proceeding was taken in wrong district or subdivision. It must also be shown that on account of the proceeding having taken place in a wrong place there was a failure of justice. But upon an examination of the record of the proceeding I find nothing to suggest that failure of justice was occasioned on account of the proceeding having been held in the Gaya court I, therefore, overrule the contention of Mr. Imam on the question of jurisdiction raised by him.
6. The second contention of Mr. Imam is that the opposite party was not entitled to ask for maintenance on the ground which she put forward in the present case, namely, that the petitioner had taken a second wife. According to the petitioner's case, he had taken a second wife with the permission of the opposite party, and this he was entitled to do under the Mahomedan Law. In this connection Mr. Imam referred me to the observation of the learned Sessions Judge in paragraph 16 of his order which reads:
"It is true that merely taking a second wife is not, ipso facto, evidence of neglect and refusal to maintain though the learned Magistrate has construed this section otherwise."
In my opinion, however, it is wholly unnecessary to go into the question whether the petitioner took a second wife with or without the permission of the opposite party because I find nothing in Section 488 to suggest that a wife's claim for maintenance can be defeated by showing that the husband had contracted marriage with another wife with her consent. On the contrary, the third paragraph of Sub-section (3) of Section 488 lays down that if a husband has contracted marriage with another wife or keep mistress it shall be considered a just ground for his wife's refusal to live with him. In view of this provision of the law, it is also unnecessary to go into the question as to whether the mere taking of a second wife is or is not evidence of neglect and refusal to maintain the first wife. 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, and in such circumstances, she would be entitled to claim maintenance from her husband without providing neglect of her on the part of her husband. I should, however, observe that in the present case it is not possible to record a finding that the petitioner took his second wife with the permission of the opposite party. No such case was put forward by the petitioner in the show cause petition before the Magistrate. To the opposite party, who was the seventh witness in support of her case, no suggestion was even thrown that she had permitted the petitioner to take another wife. This case was put forward by the petitioner for the first time when he led evidence on his side. Be that as it may, the opposite party must be deemed to have made out a just ground for her refusal to live with the petitioner and to ask for maintenance from him upon proof if his neglect or refusal to maintain her.
7. Mr. Imam then urged that the second marriage of the petitioner took place in 1958, and there was no allegation made in the petition for maintenance filed in 1964 that the petitioner had neglected or refused to maintain the opposite party prior to 1962 and in this view of the matter, her case of refusal or neglect ought not to have succeeded. The question is entirely one of fact into which I am not inclined to enter, sitting in revision. It is possible that for the first four vears since the petitioner took a second wife, she was tolerant but when she realised that she was being continuously neglected and refused to be maintained by her husband, then she proceeded to seek her redress in law. It may as well be that initially the opposite party was not neglected or refused to be maintained and so she did not think it necessary to make an application for maintenance in court. Thus, there is no force in this contention of Mr Imam.
8. Mr. Imam then urged that in his show cause petition itself, the petitioner had offered to maintain the opposite party on condition of her living with him and, therefore, under the first proviso to Sub-section (3) of Section 488, it was incumbent upon the learned Magistrate to consider any grounds of refusal to live with the petitioner put forward by the opposite party and to decide whether there was just ground for her doing so. But the learned Magistrate did not call upon the opposite party to state her grounds of refusal and he also did not mention in his order that he was satisfied that her grounds of refusal were just. In my opinion, the opposite party was not bound under the law to accept the offer which the petitioner had made to her. It was open to her to refuse to live with the petitioner provided there was just ground for her doing so, and a just ground for her refusal to live with the petitioner arose in the present case from the mere circumstance that the petitioner had contracted marriage with another wife.
9. Mr. Imam also urged that the petitioner was apprehensive that the amount awarded to the opposite party would not be utilised for her maintenance, but would be misappropriated by her brother and other members of his family with whom she was currently residing. But even if the petitioner might have such an apprehension, it is of no avail to him. The petitioner's liability, to pay for the maintenance of the opposite party is not affected by such an apprehension. His obligation is only to pay the amount awarded as maintenance and it ceases with the payment. It is no part of his duty or business to see to the proper utilisation of the moneys paid by him for the purpose. Therefore, there is no force in this contention.
10. The last question raised by Mr. Imam relates to the quantum of maintenance awarded to the opposite party. The learned Magistrate has found that the petitioner was earning a total emolument of Rs. 155.50 oer month, out of which he had to maintain himself and his two wives. On this basis he has awarded one-third of Rs. 155.50 as maintenance to the opposite party. It appears, however, that the petitioner had also two children from his second wife and he had to maintain them also. The learned Magistrate did not take this fact into consideration while deciding the question of quantum of the maintenance to be awarded to the opposite party. Normally this court does not interfere with the decision of the court below with regard to the quantum of the maintenance. Since, however, the court below has omitted to provide for the two children of the petitioner from his second wife. I am of the opinion that the maintenance awarded to the opposite party calls for some reduction, and that it should be Rs. 39/- per month, being approximately one-fourth of Rs. 155.50.
11. No other point was raised on behalf of the petitioner. I, therefore, dismiss the application with modification in the amount of the maintenance as indicated above.