Patna High Court
Subhagi Devi vs Murli Pradhan on 17 August, 1967
Equivalent citations: 1968(16)BLJR650, 1968CRILJ539, AIR 1968 PATNA 139, 1968 BLJR 650
ORDER G.N. Prasad, J.
1. The petitioner Subhagi Devi is aggrieved by the order of the learned Magistrate of Chaibasa rejecting her claim for maintenance against the opposite party in a proceeding under Section 488. Code of Criminal Procedure.
2. It is common ground that the petitioner was married to the opposite party some time in 1952 and she gave birth to a son sometime in 1955, but subsequently the relationship between the husband and the wife became strained. According to the petitioner, the opposite party began to ill-treat her. Sometimes he also assaulted her In May 1959, he turned her out of his house and so she took shelter at her father's house in village Pansua, police station Chakradharpur. In August 1959, there was a Panchaiyati and at the intervention of the punchas, the opposite party agreed to take her back to his house in village Sosokora, police station Goalkera, and to treat her well. But the reconciliation did not last long and the opposite party again began to ill-treat and assault her. On the 28th November 1961 she was again turned out by the opposite party from his house and since then she has been living with her parents at Pansua. In the month of Asarh 1962, the opposite party took a second wife, who subsequently gave birth to a son The further case of the petitioner was that ever since the opposite party turned her out of his house in November 1961, he had been completely neglecting to maintain her Accordingly on the 19th October 1964, she filed her application in Court claiming maintenance from the opposite party at the rate of Rs. 50 per month on the allegation that the opposite party was a man of means having sufficient paddy fields from which he was getting about 120 maunds of paddy per year.
3. The opposite party denied the allegations of ill-treatment and neglect made by the petitioner. His case was that there was no incident of turning out and Panchaiyati in 1959. As regards the incident of November 1961, his case was that the petitioner had left his house during his temporary absence on the 28th November 1961. Thereafter, the opposite party made repeated attempts to take her back from her father's house, but petitioner was adamant and her father also refused to send her. On the other hand, she and her father insisted that the opposite party should divorce her and cut off all marital relations with her. Accordingly, the opposite party divorced the petitioner in accordance with the custom of the parties. Thereafter, he took another wife with whom he was living in peace. According to the opposite party, therefore, the petitioner was not entitled to claim any maintenance from him. He was also not possessed of sufficient means for the purpose.
4. Both parties adduced evidence in support of their respective case. Upon a consideration thereof, the learned Magistrate recorded the following relevant findings:
(i) The allegation of neglect or refusal to maintain has not been proved;
(ii) It has not been proved that the petitioner was turned out of her house by the opposite party in November 1961, rather it has been proved that the petitioner deserted the opposite party and left his house during his temporary absence;
(iii) Thereafter the opposite party made several attempts to bring her back, but that was of no effect;
(iv) Ultimately, the opposite party was compelled to take another wife after waiting for her return for more than one year;
(v) Even so, he was ready to take her back and to maintain her with due dignity of a wife, but the petitioner rejected his proposal without justification, since, in the society of the parties, there was no bar to keep more than one wife;
(vi) The opposite party was not possessed of sufficient means;
(vii) Besides, there was an oral divorce between the parties in accordance with the custom prevailing in their society.
Upon these findings, the learned Magistrate rejected the petition under Section 488 (4) of the Code
5. A revision filed by the petitioner in the Court of Session was unsuccessful. That is how the petitioner has come up to this Court.
6. The main contention of Mr. Sudhir Chandra Ghose appearing for the petitioner is that in view of the admission that the opposite party has taken a second wife, the petitioner must be held to be entitled to have a separate residence and to be separately maintained by her husband. In this connection, learned counsel referred me to Section 18 of the Hindu Adoptions and Maintenance Act, 1956, which provides that a Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband during her lifetime, and that she is entitled to live separately from her husband without forfeiting her claim to maintenance under certain conditions, one of which is "if he has any other wife living", and another "if there is any other cause justifying her living separately". It is, therefore, urged that the learned Magistrate was in error in rejecting the petition and that the petitioner is entitled to succeed even though her case of ill-treatment and turning out of her husband's house has not been established. In support of this contention, Mr. Ghose has relied upon the decision of a learned Single Judge of the Madras High Court in Bayanna v. Devamma, AIR 1954 Mad 226.
7. I do not think, however, that the provisions of the Hindu Adoptions and Maintenance Act, 1956 can be brought in aid of the petitioner's case in the present case which must be decided upon the terms of Section 488 of the Code of Criminal Procedure. The Act of 1956 may have conferred certain civil rights upon the petitioner which she can enforce in the Civil Court. But in order to succeed before the Criminal Court in a proceeding under Section 488 of the Code of Criminal Procedure, the petitioner must, in the first instance, prove that her husband despite being possessed of sufficient means, has neglected or refused to maintain her. The provisions of Section 488 are independent of the personal law of the parties and they are not affected or governed by the Hindu Adoptions and Maintenance Act, 1956. The view which I take is supported by the decision of a learned Single Judge of the Allahabad High Court in Ramji Malviya v. Smt. Munni Devi Malviya, AIR 1959 All 767, where it was held that in a case governed by Section 488, it is irrelevant to consider the personal law of the parties.
In Bayanna's case, AIR 1954 Mad 226, no doubt, reference was made to the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, under Section 2 of which when a husband took a second wife, the first wife was entitled under the law to live separately and claim separate maintenance. But that was not the real ground upon which the wife's claim for maintenance under Section 488 was allowed. There, was a clear admission by the husband that he had refused to maintain the wife and the reference to the Act of 1946 was made only for the purpose of holding that her residing separately was legal, and since she resided separately, the duty of the husband was to give her separate maintenance. In the absence of a clear admission by the husband that he had refused to mantain his wife, I do not think that the wife's petition would have succeeded under Section 488 merely on the basis of her rights under Section 2 of the Act of 1946.
The view which I have expressed as to the scope of the Act of 1956 is supported by a Bench decision of this Court in Nalini Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty, AIR 1965 Pat 442, where it was held at P. 445:
"Does the Act of 1956 then create a new jurisdiction, a new procedure or a new remedy? Is it a new law? Does it introduce special conditions and restrictions? The answers to all these questions are in the negative. The Act merely codifies the uncodified Hindu Law realting to maintenance, which was in force immediately before the commencement of this Act. The civil court is the forum for the enforcement of the codified law as was the case for the enforcement of the uncodified Hindu Law. The new Act does not introduce any special condition or restriction. Now, is there anything in the Act of 1956 to show that it cannot stand together with Section 488 Cr. P. C.? Is there anything to indicate that effect cannot be given to both at the same time? Again, the answers are in the negative". It was further observed:
"The right of maintenance under Section 488 was irrespective of the nationality or creed of the parties, the only condition precedent to the possession of that right being in the case of a wife the acceptance of the conjugal relation. Further, Section 488 provided for only a speedy remedy and a summary procedure before a Magistrate against starvation of deserted wife or child. This section did not cover the civil liability of a husband or a father under his personal law to maintain his wife and children. The civil court was the forum for the enforcement of the civil liability under the uncodified Hindu law and that court is the forum to enforce the right under the 1956 Act" The view that I have taken is also supported by a Bench decision of the Calcutta High Court in Smt Bela Rani Chatterjee v. Bhu-pal Chandra Chatterjee, AIR 1956 Cal 134. There it was held that:
"In our view, it would not be permissible to pray in aid the provisions of tha Hindu Married Women's Right to Separata Residence and Maintenance Act for the purpose of construing Sub-section (1) of Section 488, Criminal P. C. "
It was further observed:
"Whatever might be the personal law of any wife, she must, in order to entitle her to an order under Sub-section (1) of Section 488 Cr P C urge, inter alia, that there is a present neglect or refusal on the part of her husband to maintain her"
I am, therefore, unable to accept the contention of Mr Ghose on the basis of the provision of Section 18 of the Act of 1956.
8. Mr Ghose then contends that even without calling in aid the provisions of the Hindu Adoptions and Maintenance Act, 1956, the petitioner is entitled to an order of maintenance from the Criminal Court on the ground that the opposite party has admittedly contracted marriage with another wife which afforded a just ground for the petitioner to live apart. In support of his contention Mr. Ghose relied upon the Explanation to the first proviso of Sub-section (3) of Section 488 inserted by Act 9 of 1949. The proviso reads:
"If a husband has contracted marriage with another wife or keeps mistress it shall be considered to be just ground for his wife's refual to live with him."
It is, however, plain that this explanation must be read in the context of the first pro-viso, which in turn must be read in the context of Sub-section (3), the opening words of which are "If any person so ordered, fails without sufficient cause to comply with the order." Therefore, 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). Sub-section (3) is not applicable at the very first stage when the Magistrate is called upon to pass an order under Sub-section (1).
It is true that in the first proviso of Sub-section (3), the legislature has used the following expression:
"Such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer".
But this expression must be read in the context of the provisions of Sub-section (3). I have already pointed out that the stage when Sub-section (3) conies into play is not when the Magistrate is called upon to make an order under Sub-section (1), but after such an order has been made by him. In my opinion, Sub-section (3) contains provisions for execution of an order of maintenance which has been passed under Sub-section (1). This is clear from the provisions contained therein for issue of a warrant for levying the amount due which the Magistrate may issue for every breach of the order made by him under Sub-section (1). The two provisos of Sub-section (3) also contemplate a situation where there has been a breach of an order of maintenance passed under Sub-section (1) and they govern the situation when the Magistrate is called upon to issue a warrant upon such breach. That is why the second proviso of Sub-section (31 prohibits the issue of such a warrant unless the requisite application to levy the amount due is made within a specified period. In other words, the duty enjoined upon the Magistrate to consider any ground of refusal put forward by the wife to live with the husband arises at the stage when a proper application has been made to him for executing the order of maintenance, already passed by him by issue of a warrant for levying the amount due.
I am, therefore, of the opinion that the expression "may make an order under this section", which is to be found in the first proviso, Sub-section (3) means that the Magistrate may issue a warrant for levying the amount due notwithstanding the offer of the husband to maintain his wife, where he is satisfied that the wife has just ground for refusing to live with him. I am, therefore, of the opinion that at the stage when the Magistrate is considering whether an order under Sub-section (1) should be passed or not, it is not relevant to consider whether there is just ground for the wife to refuse to live with him. What the Magistrate has to consider at this stage is whether the husband, though possessed of sufficient means, has neglected or refused to; maintain his wife, and not whether the wife has just ground for refusing to live with the husband, because, there may be cases where the husband does not neglect or refuse to maintain his wife even though she may have just ground for refusing to live with him. To put it shortly, the jurisdiction of the criminal court to make an order of maintenance against a person having sufficient means arises only upon proof of neglect or refusal on his part to maintain his wife In the absence of such proof, as in the instant case, it is not open to the Magistrate to make any order of maintenance under Sub-section (1) of Section 488.
9. Mr. Ghose, however, relies upon the decision of a learned Single Judge of the Allahabad High Court (Lucknow Bench) in Smt. Maiki v. Hermraj, AIR 1954 All 30, where it was held that the effect of the amendment made in Section 488 by Act 9 of 1949 is that no other ground for refusing to live with the husband need be looked into if he has taken a second wife or kept a mistress. But it is not clear from the report as to whether such a consideration must be applied at the stage when the Magistrate is called upon to decide as to whether an order of maintenance should be passed or not under Sub-section (1). If, however, it was intended to lay down that even at that stage the Magistrate should have regard to the just ground for the wife's refusal to live with the husband, then, with respect, I am unable to accept the decision as correct, because under Sub-section (1), the relevant question for consideration is whether or not there has been refusal or neglect to maintain the wife, and not whether the wife has or has not just around for refusing to live with the husband.
In this view, I am supported by the decision of the Calcutta High Court in AIR 1956 Cal 134, to which I have already referred There it was observed:
"In our view, it is not permissible to read into the explanation anything more than what it says in the context of proviso 1 to Sub-section (3)."
There, it was further held:
"The mere fact of a second marriage cannot ipso facto establish 'such neglect or refusal' within the meaning of Sub-section (1) of Section 488, Cr. P. C., for, a man may marry a second time and still not refuse to maintain his first wife.
In our view, the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot, without more, be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of Sub-section (1) of Section 488, Criminal P. C."
Besides, in the present case, the Magistrate has found that it was the petitioner herself who had deserted the opposite party and had left his house during his temporary absence. Thereafter the opposite party made several unsuccessful attempts to bring her back, but the petitioner was wholly irresponsive and ultimately the opposite party was compelled to take another wife after waiting for the petitioner's return to his house for about one year. Upon these findings, it is impossible to maintain that the opposite party had neglected or refused to maintain the petitioner. If the offer which the opposite party made to maintain the petitioner, in case she came back to his house, did not suit her on account of the presence of a second wife in the house, then the petitioner was entitled to seek redress in the Civil Court, but it is not open to her to say that the opposite party had neglected or refused to maintain her simply because she did not find it congenial to return to his house or live with him. In my opinion, upon the finding that the petitioner has failed to prove neglect or refusal to maintain her on the part of the opposite party, she can have no remedy in the Criminal Court.
9-A. In the foregoing discussions, I have not been influenced by the finding of oral divorce recorded by the learned Magistrate or by the finding that the opposite party was not possessed of sufficient means. I express no concluded opinion as to whether these two findings are well founded or not, because even if these findings may not be justified, the application must fail upon the other findings of the learned Magistrate, to which I have referred.
10. In the result, the application is dismissed.