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CALCUTTA HIGH COURT
D.N. DAS GUPTA, J.
Mahabir Agarwalla - Petitioner
v.
Gita Roy - Opposite Party.
Criminal Revn. No. 934 of 1961
Decided On : 30-8-1961.
MAINTENANCE - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 4(B) - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 488 - APPLICABILITY OF SECTION 488 TO HINDU WIVES - EFFECT OF HINDU ADOPTIONS AND MAINTENANCE ACT ON SECTION 488 - SCOPE OF MAINTENANCE UNDER SECTION 488 AND HINDU ADOPTIONS AND MAINTENANCE ACT - ADMISSION OF FIRST WIFE BY HINDU WIFE IN APPLICATION UNDER SECTION 488 - EFFECT - EX PARTE PROCEEDINGS - JUSTIFICATION.
Fact of the Case:
The petitioner, a Hindu husband, challenged the maintainability of an application filed by his wife under Section 488 of the Code of Criminal Procedure (CrPC) for maintenance, arguing that the Hindu Adoptions and Maintenance Act, 1956 (HAMA) had repealed Section 488 and that his wife's admission in her application that he had a first wife living barred her claim for maintenance. The petitioner also contended that the Magistrate erred in proceeding ex parte against him.
Finding of the Court:
The court held that Section 4(b) of the HAMA did not override the provisions of Section 488 of the CrPC, as the two statutes were not inconsistent. The court further held that the wife's admission in her application regarding the petitioner's first wife was not an admission of fact but rather a statement based on her inquiries, and that the issue of whether the petitioner had a first wife had to be determined on evidence adduced by the parties. Lastly, the court held that the Magistrate was justified in proceeding ex parte against the petitioner after he repeatedly failed to appear for the hearing despite being granted adjournments.
Issues: 1. Whether Section 4(b) of the HAMA repealed Section 488 of the CrPC? 2. Whether the wife's admission in her application regarding the petitioner's first wife barred her claim for maintenance? 3. Whether the Magistrate erred in proceeding ex parte against the petitioner?
Ratio Decidendi: 1. Section 4(b) of the HAMA did not override the provisions of Section 488 of the CrPC because the two statutes were not inconsistent. Section 488 of the CrPC provided a summary remedy for recovery of maintenance from the husband, while the HAMA codified the law of maintenance and provided for a wider range of maintenance, including maintenance in kind. The two statutes were thus complementary and not inconsistent. 2. The wife's admission in her application regarding the petitioner's first wife was not an admission of fact but rather a statement based on her inquiries. The issue of whether the petitioner had a first wife had to be determined on evidence adduced by the parties. 3. The Magistrate was justified in proceeding ex parte against the petitioner after he repeatedly failed to appear for the hearing despite being granted adjournments.
Final Decision: The court rejected the petitioner's revisional application and discharged the rule nisi. The court directed the Magistrate to give the petitioner an opportunity to cross-examine the witnesses who were examined on behalf of the wife and to proceed with and dispose of the application under Section 488 of the CrPC in accordance with law.
This Rule was issued upon the Chief Presidency Magistrate, Calcutta, to show cause why the proceedings under section 488 of the Code of Criminal Procedure pending in the court of a Presidency Magistrate, Calcutta, should not be quashed.
2. The facts so far as is necessary for the disposal of this matter are as follows : On the 7th January, 1961, an application was made by the opposite party Gita Roy under section 488 of the Code of Criminal Procedure in the court of the Additional Chief Presidency Magistrate, Calcutta, praying for maintenance from her husband, the present petitioner, on the ground that having sufficient means he neglected and refused to maintain her. During the pendency of that case a child was born to her and she filed another application for maintenance of that child.
3. On the 2nd May, 1961, and on some dates subsequent thereto a preliminary point was argued before the learned Presidency Magistrate, namely, that the application was not maintainable in view of the provisions of the Hindu Adoptions and Maintenance Act. On the 18th May, 1961, the learned Magistrate made the following order :
"..........In any case, without expressing any opinion as to the legal validity of the present applications before me it will not be fair to reject them outright at this stage without hearing on merits. In the interests of justice therefore I would call upon both parties to adduce evidence in support of their respective cases. Fix 19-6-61 and 20-6-61 for petitioner's evidence."
On the 19th June, 1961, the case was adjourned to the 13th July, 1961, and 15th July, 1961, for petitioner's evidence. On the 13th July, 1961, the present petitioner prayed for an adjournment through his lawyer. The prayer was allowed and the case was adjourned to the 20th and 21st July, 1961 for petitioner's evidence. On the 20th July, 1961, again the petitioner applied for an adjournment and this time that prayer was rejected and the learned Magistrate decided to proceed ex parte. The learned Magistrate observed in his order dated the 20th July, 1961, that the present petitioner was adopting "dilatory tactics" and that that was causing hardship to Gita Roy, the petitioner in that case. On the 20th July, 1961, two witnesses for the petitioner were examined and the matter was adjourned to the 21st July, 1961, for further hearing. On the 21st July, 1961, the present petitioner filed an application before the learned Magistrate for time to move the High Court. One week's time was allowed to the present petitioner for the purpose. This Court was moved on the 24th July, 1961, and the abovementioned Rule was issued.
4. It is contended by Mr. N. C. Banerjee appearing on behalf of the petitioner that the application under section 488 of the Code of Criminal Procedure is not maintainable able in view of the provisions of section 4 (b) of the Hindu Adoptions and Maintenance Act, 1956 (No. 78 of 1956). Section 4 of the Act is quoted below :
"Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease, to have effect with respect to any matter for which provision is made in this Act :
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
5. The Hindu Adoptions and Maintenance Act, the Hindu Marriage Act, the Hindu Succession Act and the Hindu Minority and Guardianship Act are some of the enactments towards codification of Hindu Law. There are provisions similar to the provisions of section 4 of the Hindu Adoptions and Maintenance Act in the three other enactments mentioned above. The object of making such a provision in all the Acts was to give overriding effect to the provisions of the Acts. Section 4 of the Hindu Adoptions and Maintenance Act means that in respect of matters
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