Mahavir Singh - (1.) THE applicant Guru Prasad and opposite party Smt. Ram Dulari are husband and wife. THE opposite party moved an application under Section 125 CrPC for maintainance. She had alleged that the applicant had treated her with cruelty and was neglecting her as she had not been able to give birth to a child. She claimed Rs. 300/- per month as maintenance. THE applicant contested the application and denied the allegations of the opposite party. He, however, alleged that he was prepared to maintain the opposite party if she lived with him.
(2.) LATER, the Magistrate held that the applicant had treated the opposite party with cruelty and had neglected her He accordingly awarded a sum of rupees fifty per month as maintenance. The learned Additional Sessions Judge upheld the findings of the learned Magistrate on the question of neglect. He also rejected the contention of the applicant that he had a genuine offer to maintain the opposite party on the condition of her living with him. Accordingly he dismissed the revision. The husband has now moved this application under Section 482 CrPC for quashing these two orders in the interest of justice. It is contended that both the courts; below have not properly appreciated the evidence and the applicant's offer. So far as the findings of the: learned Magistrate about the applicant's, treatment with the opposite party being; not good and his neglecting to maintain her are concerned, the same is not open for interference in this application. Here the finding of fact recorded by the court below and upheld by the learned Additional Sessions Judge has to be accepted as there is nothing illegal therein.
(3.) HOWEVER on the question that the courts below did not consider his offer to maintain the opposite party No. 1 on the condition of her living with him, there does not appear to be any decision according to law. The learned Magistrate gave no finding on this point at all. The second proviso to sub-section (3) of Section 125 CrPC makes it imperative of a Magistrate to consider such an offer and also reasons given by a wife if she refuses to accept the same and decide whether there was reasonable ground for her refusal. It is only thereafter that the wife can be held entitled to maintenance under Section 125 CrPC so that finding having not been recorded by the trial court, the order becomes vitiated. When the matter was raised before him, the learned Additional Sessions Judge did not consider the fact of the omission on the part of the Magistrate for not giving any finding on such an offer. However, he himself gave an opinion that the offer did not appear to be genuine, but the reasons given by him were also based on surmises and not upon facts on record. He merely observed that whenever such applications were moved, the husband in order to meet the situation said that he was ready to keep his wife and this impliedly meant that such an offer was not a genuine one but that is not a proper legal approach to the question. It is too general a view to be accepted. It would make the provision of such an offer to be wholly infructuous. This cannot be disputed that relations between a husband and wife become strained, before a wife moves a court for maintenance, but still a provision has been made for such an offer. The object of the section is to remove the neglect alleged to have been done by the husband in maintaining his wife. One way to compensate that neglect is to award maintenance but the real method to remove the neglect is to unite the family, so that there may be no question of any neglect at all. It is from that point of view that this direction has been made in the second proviso to sub-section (3) of Sec. 125 CrPC. So the offer made by the husband to maintain his wife on the condition of her living with him has to be examined with care and it is only when the reasons given by the wife are really such, that in the circumstances of the case they appear to be reasonable that the maintenance is awarded. The observation that such an offer is made only to escape the liability is not the proper way of disposing such an offer. The matter has, therefore, to go back to the Magistrate for considering the offer made by the applicant and then to pass a proper order, but the finding made by the Magistrate about the neglect is not open for review.;