KAN SINGH, J. - (1.) -
(2.) THIS is a revision application by a husband against an order of maintenance in favour of the wife under sec. 488 Cr. P. C. passed by the First Glass Magistrate, Ganganagar. Malkiyat Singh, the petitioner husband, was married to non-petitioner Gaijkaur sometimes in the year 1961. After their marriage Gaijkaur and Malkiyat Singh lived together at Malkiyat Singh's house. Malkiyat Singh was living with his father in village Chak 414, Tehsil Karanpur. The relations between the husband and the wife could not remain smooth after sometime and they became bitter. Gaijkuar did not find the conditions at her husband's house tolerable and was forced to leave her husband's roof and started living with her father in village 46, Tehsil Karanpur. Thereafter there was litigation between the husband and the wife whereas the wife applied for maintenance under sec. 488 Cr. P. C. in the court of the learned First Glass Magistrate at Ganganagar the husband applied under sec. 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. Good sense seems to have prevailed later on and a compromise was effected between the two. The terms thereof were reduced to writing. It is Ex. D. 3 on record and is dated 10-2-65. It is in the form of an application by Gaij Kaur. So far as the husband was concerned his brother had executed a deed of surety ensuring the good behaviour of the husband Malkiyat Singh towards Gaij Kaur. On the basis of that Gaij Kaur agreed in her application Ex. D. 3 that as good relations between the two had been restored, she would go back to her husband's home. In the body of the application it was averred that her husband Malkiyat Singh had executed a bond that he would not give her any trouble and would keep her with affection It was further averred therein that because of Malkiyat assuring the good behaviour good relations between the two had been restored and she would consequently go back to her husband's house. After the application Ex. D/3 was presented before the learned District Judge, another application Ex. D/l was presented before the learned Magistrate wherein Gaij Kaur prayed that the proceedings be dropped, as she did not want to prosecute that on account of a compromise between her and her husband. It appears that the matters did not improve and the parties again fell out. About the circumstances in which it was not possible for Gaij Kaur to return to her husband the two are speaking with divided voices. Gaij Kaur's case was that her husband was not returning to her the ornaments that he had taken from her and consequently she was not prepared to go to him. She insisted on the return of the ornaments first and she had told this to her husband when he visited her on two occasions at her father's house but the husband expressed his inability to return the ornaments saying that they had been pledged and he was unable to redeem them. Thereafter the husband came to her house along with three other persons and they carried fire arms and wanted to take her away forcibly. After this alleged incident Malkiyat Singh made a fresh application under sec. 9 of the Hindu Marriage Act, 1955, before the learned District Judge for restitution of conjugal rights by his wife. Gaij Kaur resisted that application on the ground of cruelty. The plea of cruelty prevailed with the learned District Judge. He accordingly dismissed the application on 44-66 vide Ex. P/l. On dismissal of this application Gaij Kaur applied before the learned sub Divisional Magistrate under sec. 488 Criminal Procedure Code for grant of maintenance on 14-6 66. The learned Magistrate recorded evidence of both the parties. He came to the conclusion that Malkiyat Singh had neglected his wife. Looking to the financial condition of the family to which Malkiyat Singh belonged the learned Magistrate awarded Rs. 125/- per month as maintenance to Gaij Kaur. After giving the gist of evidence led by both the parties the learned Magistrate observed as follows: - "in this way from the application of the petitioner as also the evidence and documents produced by her and also from the judgment of the learned District Judge it appears that the non-petitioner was not treating her properly and had been according her cruel treatment. " The learned Magistrate further observed that it appeared from the evidence of the non-petitioner that there was an earlier litigation and there was a compromise. From the evidence of the non-petitioner it further appeared that the non-petitioner and the witnesses had gone to bring his wife. This, according to the learned Magistrate corroborated the version of the petitioner. In the result the learned Magistrate concluded that the husband was neglecting to maintain the wife. The husband first went up in revision to the learned Sessions Judge, Ganganagar. The learned Sessions Judge was of the opinion that Malkiyat Singh had been treating his wife cruelly. He observed that Malkiyat Singh had taken her ornaments and he was not able to return them and thereafter he had adopted a rough method to bring Gaij Kaur back from her father's house. This according to the learned Judge had wasted away the effect of the previous compromise. The observations of the learned Sessions Judge were as follows: - "shri Malkiyat Singh has been treating cruelly to his wife is sufficiently borne out from the record. He has taken ornaments and after promise also he did not return them. When he went to fetch his wife he and his brother tried to adopt a brutal method to bring Gaij Kaur forcibly and she was insisting that she would be ready to go and reside with her husband provided she was returned her ornaments. But he did not fulfil this condition. The previous compromise wasted away by this kind of treatment extended to her and the old apprehension regarding safety of her life revived with greater magnitude than it was previously. The relation of both the parties have gone so worse owing to cruel treatment that the cleft crept up in the relation of the parties cannot be repaired. " I have heard learned counsel for the parties. Learned counsel for Malkiyat Singh has strenuously contended that refusal or neglect on the part at the husband to maintain the wife has not been proved. On the contrary, Malkiyatsingh was very much keen to bring back his wife and it is with that object that he had gone to her at her father's house She was not returning to his house on one pretext or the other without any sufficient cause. He further submitted that the evidence led by Gaij Kaur went beyond the averments in the application itself. He pointed out that it was not mentioned in the application that the party of the husband had fired the guns, but the evidence led by Gaij Kaur was that the husband and others carried guns and they fired the guns at the house of Gaij Kaur's father. Learned counsel then urged that the approach of the learned Magistrate was vitiated, because, in the first place, he had been guided by the judgment of the learned District Judge in proceedings under sec 9 of the Hindu Marriage Act, 1955. He maintains that the Criminal Court acting under sec. 488 Criminal Procedure Code was not bound by finding of the learned District Judge. In the second place, it was urged that the courts below were in error in going back to the old story of cruelty on the part of the husband prior to the compromise between the husband and the wife which resulted in the termination of the earlier litigation. Learned counsel submits that with the compromise effected between the parties even if there had been cruelty on the previous occasion that stood condoned and thereafter unless there was any justification for the wife's refusal to go and live with her husband she was not entitled to maintenance under sec. 488 Criminal Procedure Code. Lastly, it was submitted that the award of an amount of Rs. 125/- as monthly allowance to the wife was excessive and beyond the means of the husband. Learned counsel for the wife has tried to support the orders of the courts below. Now, there is no gainsaying the fact that there was a compromise between the parties. The application Ex. D/3 unmistakably shows two things (1 ). There was an apprehension in the mind of the wife about her ill treatment, if she were to live with her husband (2 ). That apprehension was removed with the husband's brother standing surety for the good behaviour of the husband toward the wife. The question arises whether, in the circumstances presented, there was warrant for the courts below to look back to the evidence of cruelty on earlier occasions prior to the compromise. On this aspect of the matter learned counsel had delved into the authorities and have been able to submit some before me. In Benton vs. Benton (1) the question was considered whether cruelty could be condoned. After considering several cases such as Henderson vs. Henderson and Crellin (1944 I All. E. R. 44) and Show vs. Show (1842, 2 Notes of Gases Supp.), the learned Lords were of the opinion that just as adultery could be condoned the offence of cruelty could also be condoned. Benton vs. Benton was, of course, a case of condonation of cruelty when the husband had sexual intercourse with his wife after such cruelty. But, the question, in my view, is settled that cruelty is condensable. I have not been shown any authority whether a compromise would result in condonation of cruelty, but I should think the underlying principle of condonation is to forgive and forget and when the parties sit together and agree to live as husband and wife once again, they are necessarily forgiving each other, though it may be difficult to say in every case that they would easily forget the old faults of each other. Forgiveness is undoubtedly implied when the parties treat by gones to be by gones by executing a deed of agreement to live together. With the execution of Ex. D/3, therefore, the previous acts of cruelty, even if there were any, had been condoned by the wife. This is, however, not the end of the matter. Under certain circumstances cruelly may be revived if after such condonation there have been any fresh fault on the part of one spouse towards another. In Benton vs. Benton (1) this question too has been discussed. A passage from Phillimore Lord Justice in Moss vs. Moss (1916 p. at p. 161) was quoted with approval and I may reproduce that passage here: "perhaps it is not necessary to make a sharp and definite exception of cruelty or to say that in complaints of cruelty a matrimonial offence insufficient in itself will displace condonation sufficiently to entitle the sufferer to a decree. For in truth when a conduct is to be considered it is impossible altogether to dissociate present conduct from the past, and acts not grievous in themselves may nevertheless operate grievously on the mind of the sufferer either as recalling past acts of violence or as causing fear of their recurrence. " However, the test of determining what could be sufficient to revive cruelty was pointed out by Bucknill Lord Justice who observed at page 232 that the proper test to apply is whether the conduct of the spouse is such as will make married life altogether impossible and that is how the learned Lord had put the test broadly. Denning Lord Justice had observed at page 333, that the subsequent conduct may consist of harshness of behaviour short of cruelty, but if it breaks up the marriage that is sufficient to revive it. Now, in the present case, these considerations have to be examined within the framework of clause 8 of sub-sec. (3) of sec. 488 Criminal Procedure Code which inter alia lays down that no wife shall be entitled to receive an allowance from her husband under this section, if without any sufficient reason, she refuses to live with her husband. From the evidence of Gaij Kaur herself it is clear that when her husband went to her and asked her to go and live with him at his house she demanded the ornaments and the restoration of ornaments was made a condition for her going to live with her husband. It is only thereafter that, according to the evidence, the husband had gone to her house, displayed force with a view to take her or finish her or any of her relations. The discussion of the learned Magistrate shows that it is all jumbled up. He has, without regard to the existence of a compromise between the parties, Ex. D/3, proceeded to take note of the evidence of the previous acts of cruelty without taking into consideration whether the cruelty had been condoned. He has also not considered whether the circumstances under which the acts of cruelty once condoned can be revived, did or did not exist in the case. If this incident of Malkiyat Singh and his companions going armed to the house of Gaij Kaur's father were not there perhaps there would have been no justification for Gaij Kaur's refusal to go with Malkiyat Singh. Both the courts have relied on the demand of Gatj Kaur for the return of the ornaments and the husband not being able to give the ornaments to her as a pre-condition for her going with him. Here also no parallel case could be cited by any of the learned counsel. There is an old case Sadar Din vs. Mussammat Guban (2) which affords, some guidance. In that case in a proceeding under sec. 488 Criminal Procedure Code the husband had made an offer to the Wife to maintain her. The wife refused to live with the husband on account of her claim for unpaid dower. This was not considered any justification for the wife to refuse to live with her husband. The learned judge observed that even if the wife had any claim against the husband for dower, she would be free to enforce it a suit, but in a proceeding under sec. 488 Criminal Procedure Code that could not afford a justification for the wife to refuse to live with her husband. This case was followed in M. Muhammad Azizullah vs. Abdul Halim (3 ). I am satisfied that the wife could not have rightly insisted on the return of the ornaments to her by the husband before she would go and live with him. The two courts were therefore, in error in treating this as a justification for the wife's refusal to go and live with her husband. Then there is one more thing that I may notice. The courts below had also relied on the judgment of the learned District Judge in dismissing the husband application for restitution of conjugal rights under sec. 9 of the Hindu Marrige Act, 1955. The findings recorded by the learned District Judge are not conclusive for the purposes of proceedings under sec. 488 Criminal Procedure Code. They may at best be a relevant consideration along with the other evidence, but by no means will such finding be sufficient to oust the jurisdiction of the Criminal Court to come to an independent decision of its own. It further appears from the evidence of the Patwari that the agricultural land stands in the name of the father of Malkiyat Singh. It is, therefore, not clear whether Malkiyat Singh has any share in it. He would have a share in it provided the land is joint family property. On the other hand, if it is the self-acquired property of Malkiyat Singh's father then Malkiyat Singh would have no right, title or interest in it. Malkiyat Singh has no doubt stated in his reply that he was cultivating one 'murabba' of land but that does not imply that the land belonged to him. I am, therefore, satisfied that proper enquiry has not been made about the means of Malkiyat Singh with a view to arriving at the amount that should have been awarded as maintenance to Gaij Kaur. In view of the several considerations pointed out above I am satisfied that the same has not been properly dealt with. It will not be necessary to record the evidence of the parties once again about the refusal or neglect on the part of husband to maintain the wife. This should be decided on evidence already recorded, but the learned Magistrate should record the evidence regarding the financial position and the means of Malkiyat Singh and he should then determine the proper sum to be awarded, if he comes to the conclusion once again that Malkiyat Singh had neglected or refused to maintain his wife and the latter had sufficient reason for not going to live with her husband.
(3.) IN the result, I allow this revision application, set aside the order of the learned Magistrate dated 8-6-67 and remand the case to the learned First Class Magistrate Ganganagar for proceeding further in the matter according to law and in the light of the observations made above. .;