GURNAM SINGH, J. - (1.) SMT . Jarnail Kaur filed a petition under Section 488 Cr. P. C. against her spouse Gulzar Singh for grant of maintenance to her and her minor son. The allegations were that they ware married about two years prior to the application according to Sikh rites and the applicant Jarnail Kaur remained at his house for about 10 months and as a result of that wedlock she gave birth to a son. It was pleaded that after 10 months of the marriage, Gulzar Singh had turned her out after giving a beating and thereafter never came to see her or her child at the house of her parents where she had been living upto the date of application. Accordingly she has claimed Rs. 200/ - p.m. as maintenance. It was also pleaded that the father of Jarnail Kaur had taken Panchayats to the house of Gulzar Singh but he refused to take her.
(2.) THE respondent Gulzar Singh contested the application and denied the allegations made therein. The marriage was admitted but it was denied that he meted out any maltreatment to her. In fact he pleaded that he had given a power of attorney regarding land inherited by him on that account. She went to her parent's house to deliver a child and after that the petitioner Gulzar Singh had gone to bring her back but she refused to come back on the plea as to why he had given the power of attorney to his elder brother. Thereafter he filed an application for restitution of conjugal rights against her but the same was contested by her. He also pleaded that he took several Panchayats to the house of Jarnail Kaur but she refused to come and that her father does not want to send her. He offered in his written statement to take her back in his house as his wife if she were willing to come.
(3.) THE applicant Jarnail Kaur, herself came in the witness -box and reiterated the allegations made in the application. She examined her father Sarwan Singh besides Hari Singh Lambardar and Harpal Singh Sarpanch who is the maternal uncle of Jarnail Kaur. Jarnail Kaur simply stated that she remained with the petitioner Gulzar Singh for about 10 months and then she came to her parents house because the respondent did not provide her with meals and neglected her and started beating. During cross -examination she admitted that she did not report about the beating to anybody nor she reported the matter to the police. Her father simply stated that after the death of his mother the elder brother of Gulzar Singh obtained a power of attorney from Guizar Singh and thereafter Gulzar Singh started beating the applicant Jarnail Kaur. The applicant remained with Gulzar Singh for about 10 months and thereafter she lived at the house of the witness and Gulzar Singh has not given any maintenance to her thereafter. Hari Singh Lambardar states that he along with 4/5 other persons had gone to the house of Gulzar Singh to request him to keep the applicant but he refused to separate from 'his elder brother and keep Jarnail Kaur in a separate house and he did not want to break the unity of the family. Harpal Singh, the uncle of Jarnail Kaur stated that Sarwan Singh told him that his daughter had been turned out and they went to the village of Gulzar Singh and his relations did not talk to him on any matter, This is the entire evidence produced by the applicant Jarnail Kaur in support of her application. Now the point for consideration which generally arises in all such applications for maintenance is whether the husband has neglected or has refused to maintain his wife. At the same time it has to be considered whether the wife is willing to perform her marital obligations. It is the permanent right of the husband to claim restitution of conjugal rights and demand from his wife the wifely duties. If it is proved that the wife is willing to perform her marital duties but the wife is forced to leave the house of her husband and has sufficient reasons to live apart from her in that case she can certainly demand maintenance u/s. 488 Cr.P C. But on the other hand if it is proved that the husband is willing to keep her and maintain her if she performs her wifely duties and the wife cannot give any sufficient reason for her staying away; in that case she cannot be held entitled to receive the maintenance. It was in this background that there are many pronouncements of various High Courts to the effect that where in proceedings by wife u/s. 488 Cr. P. C. the husband makes an offer to her to come and live with him before allowing maintenance to the wife it is incumbent on the Magistrate to record a finding that the wife had refused the offer and that the refusal was based on sufficient reasons, 52 Criminal Law Journal 1951 Himachal Pradesh Judicial Commissioner Court Hari Singh v. Parbhati 52 Crl. L.J. 1951, Nur Mohammed v. Mst. Harijan, A. I. R. 1934 Lahore 944 is another authority on the point that when the husband and expresses his willingness to take the wife and the child it is the duty of the Magistrate to enquire from the wife her reasons for not going back to her husband and failure to do so amounts to illegality in the order for maintenance in the absence of a finding that the offer was not bonafide or the reason given by the wife for not going back to her husband as sufficient. 1956 Criminal Law Journal Saurashtra, page 105 Govind Ram Naraindas vs. Ratanbai Nathu Ram, 1956 Cri.L. J. 105 - is an authority on the point that if the husband's offer is bona fide and genuine and if there was no justification or ground for the wife's refusal then the court may not award her any maintenance.;