- (1.) THIS case is the outcome of an unfortunate trouble between a husband and a wife, who both belong to respectable families. The husband, Dr. Mukand Lal, is the deputy Medical superintendent of Ripon Hospital, Simla. He married Smt. Jyotishmati on 11-12-1932. It is common ground that the wife conceived eleven times but on each occasion she used to have an abortion in the fourth month of the pregnancy. On 14-12-1948, an agreement was entered into between the parties in the presence of the father of the wife and two of her other close relations Shri Jindra Lal, Bar-at-Law, and Shri Shankar Nath, Advocate of Simla. It was recited in the agreement that the parties had mutually agreed to separate and to live separately from each other as "it is best for the two parties to separate and to remain separate on account of the differences and other circumstances that have arisen between them. " The husband was to pay maintenance allowance at the rate of Rs. 200/- per month. The other material condition worth noticing is that the wife was to be at liberty to undertake any work or avocation which did not have the effect of lowering the position or status of the husband. After the agreement the wife stayed in her husband's home for a little over a month and thereafter she started living separately. In April, 1950, the husband married another wife Dr. Rama Mehra who was working in a hospital at Simla. Two children have been born of this marriage, one is a son and the other, a daughter. The husband continued to pay the monthly allowance to the first wife up to 31-3-1955, but thereafter he discontinued the payment. On 1-7-1956 Smt. Jyotishmati filed an Application under Section 488 of the Criminal Procedure Code in the Court of the District Magistrate at Simla. It was stated inter alia in the application that in or about the year 1947 Dr. Mukand Lal started thinking of another marriage and by his inconsiderate treatment bordering on cruelty he compelled the applicant to seek separate residence. Thereupon the doctor agreed to pay Rs. 200/- per mensem to her with effect from 14-12-1948. It was further stated that the husband had neglected and refused to maintain the applicant and was demanding that she should resume residence in his house which she was not prepared to do in the circumstances then obtaining. Maintenance was claimed at the rate of Rs. 500/-per month. Dr. Mukand Lal denied allegations of maltreatment and put forward the main objection that as the parties were living separately by mutual consent no order could be made under section 488, Criminal Procedure Code. The case was tried by Shri Waryam Singh, magistrate, 1st Class, who went into the entire matter at great length. He ruled out the agreement, Exhibit D. D. , as being inadmissible be-cause it was not properly stamped. He considered the evidence produced by the parties with regard to the circumstances under which the agreement was executed on 14-12-1948 and in pursuance of which the parties started living separately. He came to the conclusion that as Smt. Jyotishmati was found to be incapable of giving birth to a child and the husband wanted to re-marry he could not have been treating her properly as had been deposed to by a number of witnesses and this maltreatment compelled her to seek separate residence. This, according to him, could not be regarded as living separately by mutual consent. The Magistrate ordered the payment of Rs. 300/- per month as maintenance to be made to Smt. Jyotishmati.
(2.) DR. Mukand Lal preferred a petition for revision under Section 435 of the criminal Procedure Code to the Court of the Sessions Judge. While considering the circumstances in which the agreement. Exhibit D. D. , was executed the learned sessions Judge observed as follows: "the agreement D. D. no doubt recites that the parties decided to live separately by mutual consent. It is, however, also stated therein that this decision was due to differences between them and other circumstances. According to the respondent the reason why it was decided that she should live separately was that the petitioner had decided to go in for second marriage. The fact that there were suggestions for second marriage of the petitioner even as early as 1946 is admitted by the petitioner, though according to him those suggestions emanated from the respondent and her father, who wanted the petitioner to marry the sister of the respondent, to which the petitioner did not agree. This is, however, denied on behalf of the respondent. The statement of the respondent that the differences between her and the petitioner were due to the decision of the latter to go in for second marriage is also corroborated by the statements of Shri Jindar Lal advocate of Delhi P. W. 1 and Shri Shan-fear Nath Advocate of Simla p. W. 7. Both these witnesses are close relatives of the respondent and as such are expected to know the internal affairs of the parties. They also signed the agreement. Exhibit D. D. , as attesting witnesses. The learned Magistrate accepted the evidence adduced on behalf of the respondent in this respect and there seems, in my opinion no cogent ground in revision to set aside the finding in this respect. " The learned Sessions Judge went into the documentary and oral evidence which had been produced by the parties and came to the conclusion that in the present case when the husband proposed to contract a second marriage the natural reaction of his first wife would be unfavourable to the proposal and she would prefer to live separately from him. The husband would also desire that his first wife should live separately to save himself and his second wife from embarrassment and any possible ugly scenes, in his opinion the decision of the parties to live separately after 1948 was not due to any mutual antipathy, but because of the circumstances wherein the respondent could not stay in the house of the petitioner. After considering the statement of law as contained in Note 23 under Section 488 of the Code of criminal Procedure by Chitaley, 5th Edition, as also the amendment made in section 488 by Act IX of 1949, he held that the decision of the wife and the husband to live separately was not by mutual consent. It is unnecessary to refer to the consideration by the learned Sessions Judge of the other defence put forward by the doctor that Jyotishmati had accepted a low menial job in the Family planning Organisation, Punjab. Suffice it to say that according to the learned Sessions Judge there was nothing to show that the aforesaid job was such as was intended to lower the status of the doctor. The salary which she was getting was Rs. 125/- per mensem. After considering the income of the doctor and other relevant matters the learned sessions Judge recommended that the order of the Magistrate be modified by reducing the amount of maintenance to Rs. 200/- per mensem instead of Rs. 300/-
(3.) SHRI D. R. Manchanda, who has appeared on behalf of the doctor, has agitated mainly the question of the agreement referred to before and the effect of living separately by mutual consent on the application under Section 488, Criminal procedure Code. He has referred to the evidence with regard to the circumstances which preceded the agreement entered into in December, 1948 and the relations which subsisted between the parties after the agreement. The Magistrate and the learned Sessions Judge had given careful and considered attention to the evidence put before them and it would not be proper for this, Court to alter their findings when it cannot be shown that they have committed any serious error in the estimation of evidence. The question of law, therefore, has to be examined in the light of the findings which have been given by the Courts below,;