SHAMBU REDDY Vs. GHALAMMA
LAWS(KAR)-1966-4-1
HIGH COURT OF KARNATAKA
Decided on April 07,1966

SHAMBU REDDY Appellant
VERSUS
GHALAMMA Respondents


Cited Judgements :-

AJIT KUMAR JANA VS. LAKSHMI RANI JANA [LAWS(CAL)-1976-5-16] [REFERRED TO]
A S N NAIR VS. SULOCHANA [LAWS(KER)-1981-6-6] [REFERRED TO]
KALE KHAN MOHD HANIF VS. JHANSI BIDI MAZDOOR UNION [LAWS(ALL)-1979-12-49] [REFERRED TO]
AMMUKUTTY AMMA PONNAMMA VS. NARAYANA PANIKKAR NEELAKANTAN NAIR [LAWS(KER)-1967-1-1] [REFERRED TO]


JUDGEMENT

Bhimiah, J. - (1.)This Revision Petition came up before Gopivallabha Iyengar, J. sitting singly. His Lordship has referred the same to a Division Bench of e Court doubting the correctness of the decision of e Court reported in AIR 1958 Mys 128, in view of the decisions in Ishar v. Soma Devi, AIR1959 P&H 295 , 1959 CriLJ767 , Mt. Dhan Kaur v. Niranjan Singh, AIR1960 P&H 595 and in Iqbal Unnissa Begum v. Habib Pasha, AIR1961 AP 445 , 1961 CriLJ604 . His Lordship has also formulated two questions of law for decision by the Division Bench They are:
"(1) Whether the proviso following sub-section (3) of section 488 governs only sub-section (3) or whether it governs also sub-section 488 of the Code of Criminal Procedure (2) That even if the proviso referred to above governs sub-section (1) of Section 488 also, whether it would be necessary to prove neglect or refusal on the part of the husband in cases where the husband has contracted a second marriage with another wife or keeps a mistress"

(2.)Briefly stated the facts of the case necessary for the disposal of the Revision Point are as follows: The respondent filed a petition for maintenance under Section 488 prima facie the Criminal Procedure Code before the Munsiff Magistrate Chincholi in case No. 17/5 of 1964. The respondent is the married wife of the petitioner. According to her the marriage took place 15 to 16 years ago. The petitioner married another woman about 10 years ago and that even after the second marriage, the respondent lived with the petitioner for 3 years. Due to negligence and ill-treatment, she was forced to leave the petitioner's house about 7 years back and since then she is residing with her mother and is maintained and fed by her mother. She claims maintenance from the petitioner. The say of the petitioner is that he married respondent 22 years ago and that some 15 years back she left his house without his knowledge and permission and lived with her parents at Ogipur village, Tandur Taluk, A. P., and since then, she is residing there only. The petitioner's efforts to bring her back were in vain as she refused and declined to live with the petitioner. The petitioner waited for 3 years for return of the respondent and after giving a final warning to her, he contracted a second marriage about 12 years ago. He denies neglect or ill-treatment. On the other hand, he asserts that he treated her with love and affection throughout the period of matrimonial life as a true and sincere husband, and he is quite willing to accept her company and resume matrimonial relations if she comes and lives with him. The respondent is unwilling to do so. A preliminary objection was taken on behalf of the respondent that by virtue of proviso under sub-section (3) of Section 488 of the Criminal Procedure Code, the evidence relating to cruelty or negligence need not be recorded inasmuch as the petitioner has admitted the second marriage and that the recording of evidence should be confined only to the quantum of maintenance. The learned Magistrate, after hearing counsel for the respondent as well as the petitioner and relying upon the decision in Syed Ahmad v. Naghath Parveen Taj Begum AIR 1958 Mys 128, came to the conclusion that the petitioner is bound to maintain the respondent and the question of neglect or cruelty or desertion need not be gone into in e case. It is against this order, the petitioner has come up in revision.
(3.)Sri K.J. Shetty the learned Advocate for the petitioner, contended that the law laid down in the decision in AIR 1958 Mys 128 to the effect that neglect or no neglect, the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife, does not lay down correct interpretation of sub-sections (1) and (3) of Section 488 of the Criminal Procedure Code and therefore it requires reconsideration. He further urged that the proviso to sub-section (3) of Section 488 Cr.P.C. governs only that sub-section and not the sub-section (1) of Section 488 Cr.P.C. He also urged that in the event of the proviso to sub-section (3) governing sub-section (1) the wife must necessarily prove neglect or refusal on the part of the husband to get an order of maintenance passed by the Magistrate. Sri K.A. Swamy the learned Advocate for the respondent contends that the law laid down in the decision in AIR 1958 Mys 128 is the correct interpretation of the provisions of sub-section (1) and sub-section (3) of Section 488 Cr.P.C. A number of decisions bearing on the question of law have been brought to our notice by both the advocates.


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