P. N. Bakshi, J. - (1.) AN application was filed by Shrimati Maya Devi under Section 488 CrPC claiming maintenance allowance from her husband. Her case was that she was the legally married wife of Ishwar Singh Tyagi ; that her husband had developed illicit relations with one Shrimati Kashmiri the wife of Rohtash Gusain of his village. When she complained to her husband, he beat her, deprived her of all ornaments and clothes and left her at her father's house. The opposite party had failed to maintain her. He has .100 Big has of land of which the annual income is Rs. 40,000/-. Shrimati Maya Devi claimed maintenance allowance of Rs. 500/- per month.
(2.) THESE allegations were denied by the opposite party Ishwar Singh. He denied his illicit connection with Shrimati Kashmiri. He also denied having deprived Shrimati Maya Devi of her ornaments and clothes. His case was that Shrimati Maya Devi had gone to her father's place in order to join the marriage of his younger sister. He went to her house a number of times to call her but she did not come with him. Ishwar Singh admitted that he had only 50 Bighas of land but he denied [his liability to maintain his wife. The Stub Divisional Magistrate, Hapur rejected the claim of Maya Devi. Aggrieved thereby a revision was filed before the Sessions Judge, Meerut, which has been allowed on 24th April, 1976. Hence this revision. I have heard counsels for the parties and have also perused the impugned order. The applicant's counsel has alleged that the Sessions Judge 'has acted illegally in reversing the findings of fact recorded by the trial court. I have very minutely examined this sub- mission. As I have narrated above, the specific case of Shrimati Maya Devi was that her husband had developed illicit connection with Shrimati Kashmiri which was objected to by her and that on account of this illegal relationship he beat her and left her at her father's place. These allegations were denied by Ishwar Singh. From a close scrutiny of the judgment of the trial court I find that the Sub Divisional Magistrate has failed to record a clear finding whether the husband had developed illicit relations with Shrimati Kashmiri, as a result of which he ill-treated his wife, beat her and turned her out of the house. Since this aspect of the matter has not been touched at all by the Sub Divisional Magistrate and no finding given thereon, it was perfectly open to the Sessions Judge, to consider this aspect on re-assessment of the evidence on record. This was clearly an illegality which was committed by the trial court. The failure of the trial court to give a finding on this crucial question was a clear failure to exercise jurisdiction which had resulted in severe prejudice to the case of Smt. Maya Devi. As such the Sessions Judge was fully justified in re-assessing the evidence on this crucial issue and in recording his finding. This illegal omission by the trial court was, therefore, rightly rectified by the court of revision. He came to the conclusion that on account of the illicit relations between Ishwar Singh and Shrimati Kashmiri, he did not like to keep his legally wedded wife with him and after beating her he left Shrimati Maya Devi at her father's house. He has rejected the defence plea that Shrimati Maya Devi went to the residence of her father out of her own free will or that Ishwar Singh went to fetch her from her father's place. In other words, the Sessions Judge held the allegation of cruelty proved and, therefore, on this ground he was fully justified in allowing the claim of Shrimati Maya Devi for maintenance. Learned counsel for the applicant has also argued that even assuming that Ishwar Singh had developed illicit relations with Shrimati Kashmiri, yet, that would not be a sufficient ground for the wife to live separately. He has referred to the proviso in Section 488 (3) CrPC and also to a similar Explanation in Section 125 (3) CrPC. Under the terms of the proviso "Explanation" "if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him." The point for consideration is as to what is the meaning of the expression "keeps a mistress". Counsels for the parties were unable to show me any case law defining the expression "keep". I have therefore to fall back upon the ordinary and grammatical meaning of the expression. The Imperial Dictionary, Vol. II, by John Ogilvie, LL.D. 1904 Edn. defines the word 'keep' as follows : 1. keep means the act of keeping ; custody ; guard ; care. 2. the state of being kept. 'Keeper' has also been defined as one who keeps ; one who holds or has possession of anything ; one who retains in custody ; one who has the care, custody or superintendence of anything etc.
(3.) FROM the above definition it is obvious that the word 'keep' connotes an idea of actual physical possession. In other words if the mistress lives with the husband at his residence, he would in law be deemed to have kept her as his mistress within the meaning of the Explanation to Section 125 CrPC. That interpretation appears to be reasonable also. If the mistress does not live at the house of the husband then the legally wedded wife cannot have a just ground to refuse to live with her husband. Difficulty arises only when the mistress and the legally married wife have to live together which becomes intolerable to either party. Therefore, the explanation provides that if the husband keeps the mistress with him the wife can rightly refuse to live with her husband. As such if the husband merely has illicit relations with the mistress, who does not live with him, a sufficient motive or ground is not afforded to the wife to refuse to stay with her husband. It would be a different matter altogether if, as a result of this illicit intimacy with a mistress, the husband begins to ill-treat his wife, then certainly the wife would be entitled to separate residence and maintenance. But, if the husband continues to treat his wife with all honour and dignity to which she is entitled and affords all the amenities for her maintenance, in that case, merely because the husband has a mistress living elsewhere, would not be a sufficient ground for the wife to claim a right of separate residence and maintenance. Counsel for the opposite party has urged that such an interpretation might lead to immorality on the part of the husband. Courts of law are not preachers of morals. It is not competent for a Judge to modify the language of an Act in order to bring it in accordance with his view of what might be morally correct. It is the business of a court to see what Parliament has said, instead of reading into the Act what ought to have been said. The remedy for correction of morals lies with the legislature and not with the courts.;