JOAO FRANCISCO COELHO Vs. MARIA LUCIANA DE SOUZA

JUDGEMENT

(1.) The short question for consideration in this revision petition is whether the explanation to the first proviso to Sub-Section (3) of Section 488 of the Code of Criminal Procedure applies at the stage of making an order of maintenance under Sub-Sec. (1) of S. 488 (hereafter referred to as "the Code"). This explanation has caused some doubt or difficulty in its construction. It has led to difference of opinion in some High Courts.

(2.) The material facts which are few and simple may be set out before this question is examined. The respondent - Maria Luciana de Souza - married the applicant - Joao Francisco Coelho - in April, 1965. The applicant, his brother and his brother's wife were living in the house of the applicant at the time of the marriage. The brother of the applicant after some time left for abroad, but his wife continued to live with the applicant. The married life of the applicant and the respondent lasted for a few months when the respondent left the house of the applicant and went to reside with her mother. The reason for leaving the house was that she found the applicant on terms of illicit intimacy with his brother's wife. They shared the bed together but, as far as she was concerned, she was treated, in a manner of speaking, like a "hewer of wood and drawer of water". According to her, she was ill-treated and often beaten both by the applicant and his brother's wife. Efforts were made to bring about reconciliation but they proved abortive. The respondent ultimately filed the application for maintenance under Sec. 488 of the Code, in June, 1967. In that application, she claimed maintenance on the basis of the following allegations :-

(3.) There are concurrent findings of fact based on the evidence that the applicant has been having illicit connections with his brother's wife. These findings of fact are based on the evidence and therefore have to be accepted. Mr. S.K. Kakodkar, learned counsel for the applicant, in this situation, confined himself only to the question of law set out in the opening paragraph. Learned counsel for the parties cited certain authorities which I shall consider but before doing so it may be worthwhile turning to the scheme of Section 488. This section is included in Chapter XXXVI of the Code under the heading "Of the Maintenance of Wives and Children". It consists of 8 sub-sections. The Sub-Sections (6) to (8) are not material for the present purpose and, therefore, it is not necessary to refer to them. The object of the proceedings for maintenance is to prevent vagrancy and destitution by compelling the husband or father to support his wife or child unable to support itself. Sub-Section (1), for the present purpose provides for grant of a monthly allowance when, a husband having sufficient means neglects or refuses to maintain his wife. Sub-Section (2) mentions the respective dates when such allowance shall be payable. Sub-Section (3) provides for enforcement of the order passed under Sub-Section (1). This sub-section is important and it reads thus :-