- (1.) FACTS Dhan Kaur was married to Niranjan Singh 17-18 years ago and a son Mehar Singh was born to them. About 10/12 years ago, a brother of Niranjan Singh died, leaving behind Bhan Kaur as widow, whom Niranjan Singh remarried in order to save the ancestral property. Thereafter Dhan Kaur continued to live with her husband and gave birth to a son, who died during infancy and also to a daughter Kelo, who is still living and is one of the applicants. After sometime at the instigation of the co-wife, Bhan Kaur, Niranjan Singh started mal-treating Dhan Kaur. It was said that education of Mehar Singh was stopped. About a month before making the application, Dhan Kaur was beaten and turned out of the house. A panchayat was taken but to no effect. Niranjan Singh respondent admitted all the facts aforesaid, but explained that there was no neglect on his part. As a matter of fact Dhan Kaur had gone to visit her parents and there she was instigated by her brothers to file an application under Section 488, Cr.P.C. The learned magistrate has accepted the version of the husband as correct and has held that Dhan Kaur's refusal to live with her husband is not justified and, accordingly, rejected the application under Section 488, Criminal Procedure Code. The petitioner went up in revision to the Court of the Additional Sessions Judge, Ferozepur who referred the matter to the High Court. ORDER OF REFERENCE TO DIVISION BENCH J.S. Bedi, J. (D/- 11-8-1959) The short point which requires determination in this reference is whether a wife is entitled to live separately and claim maintenance on account of remarriage of her husband. On this point there are conflicting authorities. Tek Chand J. in Ishar v. Mst. Soma Devi, AIR 1959 Punj 295 held that mere fact that the husband has contracted a second marriage or has kept a mistress, by itself, is not a valid ground for claiming maintenance, under section 488, if the husband has not otherwise neglected or refused to maintain her. Contrary view has been taken by Randhir Singh J. in Smt. Maiki v. Hemraj, AIR 1954 All 30 wherein it has been held that no other ground for refusal to live with the husband need be looked into if there is the good ground of husband's contracting another marriage, for the wife's refusal to live with her husband. The fact that the wife came once of twice to live with her husband even after his remarriage does not improve matters in favour of the husband. The same view has been taken by Guha J. in Kunti Bala Dassi v. Nabin Chandra Das, (S) AIR 1955 Cal 108, by J. N. Wazir C. J. and S. Murtaza Fazl Ali J. in Mst. Biro v. Behari Lal, AIR 1958 J and K 47 and by Grover J. in Dr. Mukand Lal v. Smt. Jyotishmati, 1958-60 Pun LR 314: (AIR 1958 Punj 390). This point arises almost in many cases daily. Although I agree with the authorities quoted later but this point is not free from difficulty. It may, therefore, be decided more authoritatively, by a larger Bench. I, therefore, direct that the papers be placed before my Lord the Chief Justice for orders. JUDGMENT OF THE DIVISION BENCH Mehar Singh, J. The question, almost an abstract question, of law that has been referred for decision, is whether a wife, having under the law a right to live separately from her husband because of his having contracted marriage with another wife, can succeed in a claim for maintenance under section 488 of the Code of Criminal Procedure without proof of neglect or refusal on the part of the husband to maintain her?
(2.) The reference has been necessitated because of difference of judicial opinion on the question. In Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134, a Division Bench of the Calcutta High Court, and in AIR 1959 Punj 295, Tek Chand J., have held that the mere fact that the husband has contracted a second marriage or has kept a mistress, per se, is not a valid ground for the wife to claim maintenance, under section 488, if the husband has not otherwise neglected or refused to maintain her. This is one approach to the question. In Banarsi Bai v. Ghisoolal, AIR 1955 Ajmer 8(2), Nigam J. C., Syed Ahmad v. Naghath Parveen Taj Begum, AIR 1958 Mys 128, Hedge J., and in AIR 1958 J and K 47, Murtaza Fazl Ali J., with whom Wazir C. J. concurred, have expressed the view that neglect or refusal or no neglect or refusal the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. These are the two of cases taking directly opposing views on the question. In addition in Senapathi Mudaliar v. Deivanai Ammal, AIR 1950 Mad 357; Gunni v. Babu Lal, AIR 1952 Madh B 131; AIR 1954 All 30; Bayanna v. Devamma, AIR 1954 Mad 226, Rajeswariamma v. Viswanath, AIR 1954 Mys 31 and 1958-60 Pun LR 314: (AIR 1958 Punj 390), there are observations, which lend some support to the second view, but the facts of the case show that those were really cases of neglect or refusal to maintain on the part of the husband.
(3.) The sub-sections of section 488 relevant for the consideration of the question are- "488. (1) If any person having sufficient means negates or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate, a Presidency Magistrate, a Sub-Divisional magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of such month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made; Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing: If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him. Provided, further, that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. (4) No wife shall be entitled to receive an allowance from her husband under this section of she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, of if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." The foundation of the order of maintenance under sub-section (1) is the proof of neglect or refusal by the husband to maintain his wife. If this basis does not exist, there is no right to a claim of maintenance under that sub-section. That being so, the question is whether there is anything in section 488, in any of its subsequent sub-sections, that gives a right to maintenance against her husband to a wife on any other basis and as I read the section, I find that there is no other basis provided in that section for such a claim by the wife. When subsections (1) to (5) of section 488 are considered together among other defences, the husband has two defences as an answer to a maintenance application against him by his wife, and those defences are-- (a) that there has been no neglect or refusal to maintain the wife, or (b) that the wife refuses to live with the husband without just ground. Of course other defences are also open to the husband according to the provisions of section 488, but for the present purpose, it is necessary to be clear that the two defences referred to above are distinct and separate defences and the husband would succeed in defeating the application of the wife if either or both of those defences are proved. The first proviso under sub-section (3) says that it is a just ground for a wife to refuse to live with her husband, if he has contracted marriage with another wife or keeps a mistress. The second defence, as given above, can obviously be taken at the trial of an application under sub-section (1), and it can subsequently also be made a ground for cancellation of an order of maintenance already made as provided in subsection (5). Sub-sections (4) and (5) make it abundantly clear that this is a separate and distinct defence open to the husband at the trial and even in a case in which neglect or refusal has been proved and a maintenance order has been made in favour of a wife the husband can obtain cancellation of the order on the basis of that defence. At either stage it is open to the wife in reply to establish a just ground for her refusal to live with her husband and one of such just grounds is the statutory ground when he has contracted marriage with another wife or keeps a mistress. If the husband succeeds on first of those two defences, the question of the second will not arise but if he fails on the first and it has been proved that he has neglected or refusal to maintain his wife, he may succeed even then on the second ground provided there is no just ground for the wife to refuse to live with him. It now becomes clear that answer of the wife on the basis of a just ground to the second of those defences may not necessarily and always be proof of neglect or refusal by the husband to maintain her. The proof of that is the very basis or foundation of the claim of the wife and answer by the wife to the second of those defences on a just ground may not be proof of the same, for that will quite obviously depend upon the facts and circumstances of a particular case. This is so because, as has been pointed out in Bhikaji Maneckji v. Maneckji Mancherji, 9 Bom LR 359, a neglect or refusal by the husband to maintain his wife may be by words or by conduct. It may be express or implied. There is, therefore, under section 488 no basis for a claim of maintenance by the wife except on the ground of neglect or refusal by the husband to maintain her, but neglect or refusal may be express or may by implications be inferred from the conduct of the husband. The question of neglect or refusal in a particular case is always a question of fact about which conclusion may be reached by the Court on evidence proving it expressly or on considerations leading to an inference of the existence of the same.;