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PATNA HIGH COURT
G.N.Prasad, J.
Subhagi Devi
Versus
Murli Pradhan
Criminal Revision No. 853 of 1966 ;
Decided On : AUGUST 17, 1967
MAINTENANCE - HUSBAND AND WIFE - NEGLECT OR REFUSAL TO MAINTAIN - JUST GROUND FOR WIFE TO REFUSE TO LIVE WITH HUSBAND - HUSBAND TAKING SECOND WIFE - WHETHER JUST GROUND FOR WIFE TO REFUSE TO LIVE WITH HUSBAND - SCOPE OF SEC. 488, CRIMINAL PROCEDURE CODE - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - WHETHER RELEVANT - EXPLANATION TO FIRST PROVISO OF SUB-SECTION (3) OF SEC. 488, CRIMINAL PROCEDURE CODE - SCOPE AND APPLICABILITY.
Fact of the Case:
The petitioner, Subhagi Devi, filed an application under Sec. 488, Code of Criminal Procedure, claiming maintenance from her husband, the opposite party, on the allegation that he had neglected or refused to maintain her. The petitioner alleged that the opposite party had ill-treated her, assaulted her, and turned her out of his house in November 1961. She further alleged that he had taken a second wife in Asarh 1962 and that he was possessed of sufficient means to maintain her.
Finding of the Court:
The learned Magistrate rejected the petition, finding that the petitioner had failed to prove neglect or refusal to maintain her on the part of the opposite party. The Magistrate also found that the petitioner had deserted the opposite party and had left his house during his temporary absence, that the opposite party had made several unsuccessful attempts to bring her back, and that the opposite party was not possessed of sufficient means.
Issues: 1. Whether the provisions of the Hindu Adoptions and Maintenance Act, 1956 can be brought in aid of the petitioner's case in a proceeding under Sec. 488 of the Code of Criminal Procedure. 2. Whether the fact that the husband has taken a second wife affords a just ground for the wife to live apart and claim separate maintenance under Sec. 488 of the Code of Criminal Procedure.
Ratio Decidendi: 1. The provisions of the Hindu Adoptions and Maintenance Act, 1956 are independent of the personal law of the parties and are not affected or governed by the Act. The Act merely codifies the uncodified Hindu Law relating to maintenance, which was in force immediately before the commencement of the 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. 2. The Explanation to the first proviso of sub-section (3) of Sec. 488, inserted by Act 9 of 1949, must be read in the context of the first proviso, which in turn must be read in the context of sub-section (3). Sub-section (3) comes into play only after a person has failed without sufficient cause to comply with an order passed against him under sub-section (1). Therefore, sub-section (3) including its two provisos is not applicable at the very first stage when the Magistrate is called upon to pass an order under sub-section (1).
Final Decision: The application is dismissed.
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 Sec. 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 fathers 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 mounds 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 fathers 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 Sec. 488 (4) of the Code.
5 A revision filed by the petitioner in the Court of Session was unsu
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