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1968 Supreme(Ori) 94
HIGH COURT OF ORISSA
S. Acharya, J.
SRIBATAHA BARIK - Appellant
Versus
MUSAMAT PADMA - Respondent
Criminal Revn. 164 Of 1968
Decided On : AUGUST 28, 1968
A husband is not liable to maintain his wife under Section 488 of the Criminal Procedure Code if she refuses to live with him.
Headnote:
MAINTENANCE - SECTION 488 CRIMINAL PROCEDURE CODE - WIFE'S REFUSAL TO LIVE WITH HUSBAND - HUSBAND'S LIABILITY TO MAINTAIN CHILD - INTERPRETATION OF SECTION 488 CRIMINAL PROCEDURE CODE AND HINDU LAW - COURT'S ANALYSIS AND CONCLUSION ON MAINTENANCE FOR WIFE AND CHILD.
Fact of the Case:
The petitioner's wife filed a case under Section 488 of the Criminal Procedure Code, alleging that her husband had neglected or refused to maintain her and their minor son. The petitioner contended that he was willing to maintain his wife and son if they came to live with him in his house, but they refused. The Magistrate ordered the petitioner to pay maintenance to his wife and son, or to live in his wife's parents' house and maintain them.
Finding of the Court:
The court found that the petitioner was willing to maintain his wife and son if they came to live with him in his house, but they refused. The court also found that the petitioner had not neglected or refused to maintain his son, who was staying with his mother.
Issues: 1. Whether the petitioner was liable to maintain his wife and son under Section 488 of the Criminal Procedure Code. 2. Whether the petitioner's offer to maintain his wife and son if they came to live with him was a valid defense to the wife's claim for maintenance.
Ratio Decidendi: The court held that the petitioner was not liable to maintain his wife because she had refused to live with him. The court also held that the petitioner's offer to maintain his wife and son if they came to live with him was a valid defense to the wife's claim for maintenance. The court further held that the petitioner was liable to maintain his son, who was staying with his mother.
Final Decision: The court set aside the Magistrate's order granting maintenance to the wife and the alternative order directing the petitioner to go and stay with his wife in her parent's house to maintain them. The court ordered that the petitioner was liable to pay maintenance only for the child, who was, at present, with his mother.
S. ACHARYA, J.
( 1 ) THIS is a revision against an order passed by Sri D. Naik, Sub-divisional magistrate, Athmallik in Case No. 13-M of 1967 ordering the petitioner to pay a sum of Rs. 40/- per month with effect from the date of the institution of the said case on 26-6-1967, towards the maintenance of his wife, the opposite party and his minor son, who are now living away from the petitioner. While passing this order, the Magistrate has further ordered that if the petitioner does not choose to pay the maintenance as aforesaid, he is to live in the house of his wife's parents and to maintain them according to the desire of his wife.
( 2 ) THE petitioner's wife (the opposite party) filed the aforesaid case against her husband (the petitioner), on the allegation that she being the only daughter of her parents, her father, negotiated with the petitioner, and on getting his consent kept him as Ghar Jwain after performing their marriage. The petitioner lived with his wife in his father-in-law's house for a few years and thereafter, on two or three previous occasions, he left that place and went away to his own village on creating troubles and picking up quarrels with her and her parents. The petitioner has come back to his father-in-law's village with his widowed mother, but is living separately from his wife in his own house, and is not agreeable to stay with her in her father's house in spite of her repeated requests and the decisions of the village panch. The opposite party as such is remaining in her father's house with her child four and half years old, and the petitioner, does not care to maintain her and her child.
( 3 ) THE petitioner, on the other hand contended that he could not Jive in his fatherin-law's house because of ill-treatment meted out to him there. He stated in his written statement that he was and is always ready and willing to maintain his wife, and his son if they would come over and live with him in his house, in the same village. Instead of the wife and child coming to live with the petitioner, his wife, on the ill-advice of her father, is rather insistent upon him that he should come and live with her in her father's house.
( 4 ) THE learned Magistrate in para 5, while concluding his findings states as follows :-
"it also appears that the O. P. (the husband) is actually willing to maintain the petitioner (the wife) and her son if the petitioner goes over to the house of the O. P. himself and lives there with him as husband and wife. 'but when the O. P. has married the petitioner on condition that he would live in the house of her parents and maintain her as well as her parents, it seems undesirable to compel her to live with the O. P. in his own house at present. Hence I find that O. P. is legally bound to maintain the petitioner by living with her in the house of her parents. ' " finally while passing the order for maintenance of the wife and the child at the rate of Rs. 40/- per month, he passed an alternative order by saying. ". . . . . or in the alternative to live in the house of the petitioner's parents and to maintain them according to the desire of the petitioner forthwith,. . . . . "
The above finding underlined (here in ' ') by me and the order quoted above are untenable, illegal, and contrary to public policy. In a cause under Section 488 criminal Procedure Code, the wife may get maintenance from her husband, if she can prove that her husband has sufficient means, and he has neglected or refused to maintain her. Under the first proviso to Clause (3) of the said section it is 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 offers if he is satisfied that there is just ground for so doing. So, under this clause there is an expectation that the wife should ordinarily live with the husband,
