BAI GANGA Vs. HARIJAN GHIMAN SHANKER
HIGH COURT OF GUJARAT
HARIJAN GHIMAN SHANKER
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(1.) IN certain maintenance proceedings by the wife, the learned Magistrate, First Class, 1st Court, Broach, held that the divorce alleged by the husband was not proved. He also held that the alleged ill-treatment and cruelty alleged by the wife are not proved, and, therefore, he disallowed maintenance to the wife, although he allowed maintenance to the child Manhar. The learned Sessions Judge, Broach, Is of the opinion that the order is wrong and has made a reference to Set it aside and to award Rs. 10/- as maintenance to the wife. Under Section 488, Cr. P. C. a wife is entitled to maintenance if she proves that her husband having sufficient means neglected to refuse to maintain her. The question whether the husband having sufficient means neglected to maintain the wife was not considered by the learned Magistrate. It is true that Sub-section (1) of Section 488 Cr. P. C. is subject to the provisions of Sub-section (4) of the said section, which reads as follows: No wife shall be entitled to receive an allowance from tier husband under this section if she is living in adultery, or, if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. It is for the husband to prove that without any sufficient reason the wife refused to live with her husband or that the wife was living separately by mutual consent. The husband must prove that before the application the wife refused to live with the husband without any sufficient reason. For the purpose of Sub-section (4) of Section 488 Cr. P. C. it is not sufficient that after the application the husband makes an offer to the wife to keep her if she came to live with him. That offer may be relevant under Sub-section (3) of Section 488, Cr. P. C. but that offer made after the application is not relevant under Sub-section (4) of Section 488, Cr. P. C.
(2.) IN the present case it was the case of the husband that the wife was divorced. It is clear therefore that at least after the date of the alleged divorce the husband did not offer to the wife to keep her with him and that at least after the date of the alleged divorce there has been a neglect and refusal to maintain the wife. But unfortunately there is a finding that the alleged divorce is not valid because it was not consented to by the wife herself. So, admittedly, there was refusal and neglect to maintain the wife and there was no offer made to the wife to maintain her if she came to live with the husband.
(3.) ON both these grounds, the learned Magistrate was wrong in not awarding maintenance to the wife. As regards the quantum of maintenance, the learned Sessions Judge has suggested Rs. 10/- per month as maintenance to the wife, and that figure is not objected to by any of the parties here. Therefore, there will be an order of maintenance In favour of the wife at the rate of Rs. 10 per month. The reference is accepted.;
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