Decided on January 10,1963



V.B.RAJU - (1.) This is a reference by the learned Sessions Judge Surat recommending that the order passed by the learned Joint Civil Judge (J. D.) & J. M. P. C. Olpad dismissing an application of a wife under sec. 488 Criminal Procedure Code be set aside. The learned Magistrate held that the divorce alleged by the husband was not proved and held that the husband was possessed of sufficient means to make a monthly allowance to his wife. But he dismissed the application on the ground that there was no evidence to show that the husband ever refused to maintain his wife. The learned Magistrate observed that the wife sat silent for a long period of 17 years without taking recourse to any legal proceedings against her husband and made no demand for maintenance. He therefore observed that when there is no demand the question of refusal does not arise. He therefore held that the husband had not neglected or refused to maintain his wife and therefore dismissed the application.
(2.) The learned Government Pleader supports the reference but the learned counsel for the husband opposes the reference and relies on (1) Ramji Malviya v. Smt. Munni Devi A.I.R. 1959 Allahabad 767 (2) Smt. Bela Rani v. Bhupal Chandra A.I.R. 1956 Calcutta 134 (3) The State v. Mt Anwarbi and others A.I.R. 1953 Nagpur 133 (4) Ishar v. Soma Devi A. I. R. 1959 Punjab 295 and (5) In Re Gulabdas Bhaidas I.L.R. 16 Bombay 269 at p. 275. His contention is that the question whether the husband had married a second time is irrelevant under sub-sec. (1) of sec. 488 Cri.Pro.Code and that that is relevant only under sub-sec. (3) of sec. 488 Cri. Pro. Code. Admittedly the husband in this case had married a second wife some years ago and some six months after the wife (applicant) left the husband. But according to-the wife she left the husband because she was cruelly treated by him. There was no inquiry or finding on the fact of cruelty although the learned Magistrate observes that for several years the married life of the parties was happy.
(3.) Section 488 of the Criminal Procedure Code consists of 5 sub-sections and between sub-sec. (3) and sub-sec. (4) there is a proviso an explanation and a second proviso. It is therefore clear that the proviso explanation and the second proviso are provisos and explanation to sub-sec. (3) and not to the whole section. Sub-sec (3) reads as follows :- If any person so ordered fails without sufficient cause to comply with the order any such Magistrate may for every breach of the order issue a warrant for levying the amount due in manner here in before provided for levying fines and may sentence such person for the whole or any part of each months allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made:- 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 or refusal stated by her and may make an order under this section notwithstanding such order if he is satisfied that there is just ground for so doing. ;

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