BERI, J. - (1.) THIS is a husband's application in revision challenging the grant of maintenance allowance to his wife under Sec. 488 of the Code of Criminal Procedure.
(2.) FACTS material for the determination of this application may be briefly recalled. Smt. Prabhati Bai was married to Hemchand some 34 years ago. A son and a daughter were born out of this wedlock. In November, 1959 Prabhati Bai made an application under Sec. 488 of the Code of Criminal Procedure alleging that her husband Hemchand was guilty of cruelty to her and was carrying on an intrigue with another woman; that she was turned out by him from his house and she is being maintained by her mother. As the husband had an income of Rs. 330/- per month, she claimed Rs. 75/-per month by way of maintenance allowance. The husband resisted the petition denying the charges of cruelty and adultery. He claimed to have been considerate towards, his wife despite her being an idiot. He submitted that he was prepared to maintain her notwithstanding her imbecility. He stated that his income, merely amounted to Rs. 156/- and he had a large family to maintain. The learned Magistrate held that Hemchand had started ill-treating his wife on account of her mental ailment as he was fed up with her. He awarded her a maintenance allowance of Rs. 30/- per month. Dissatisfied with this order Hemchand presented an application by way of a revision before the Additional Sessions Judge, Jaipur. By his order dated 15. 4. 1961 he affirmed the order passed by the learned Magistrate. Now the husband has come to this Court. The learned counsel appearing for the husband has urged that there is no evidence to warrant the conclusion that the husband refused or neglected to maintain his wife and without proof of neglect or refusal no order under Sec. 488 of the Code of Criminal Procedure could be passed; that the husband had offered to maintain the wife and she was not justified in refusing to live with him; the reason given by the wife for not living with her husband, namely, that he bad illicit relations with another woman was in the first place unfounded and an afterthought and in the second it was no reason for the wife to refuse to live with her husband. Reliance was placed by him on Mr. Dhan Kaur V. Niranjan Singh (1), Sm. Bela Rani V. Bhupal Chandra (2) and Madho V. Chanchoo (3 ). The learned counsel for the wife supported the orders of the courts below. He contended that the conclusion whether the husband neglected or refused to maintain his wife was a question of fact which having been found in favour of the wife by the two courts below should not be lightly disturbed in revisional jurisdiction. The offer made by the husband was on his own showing a conditional one. In any case, the courts below have found that Hemchand had criminal intimacy with another woman and in view of the paragraph introduced between the 2nd and the 3rd proviso to S. 488 (3) by Act IX of 1949 this was a complete answer for the wife to refuse to live with the husband. He cited Maiki V. Hemraj (4) and Ranjit Kaur V. Avtar Single (5 ). This case raises questions of common occurrence and I propose to examine them in some detail. Chapter XXXVI of the Code of Criminal Procedure has for its caption "of maintenance of wives and children". It consists of only 3 sections all devoted to questions of maintenance. The inclusion of this subject in the Criminal Procedure Code is suggestive of the inference, which some High Courts in India have recognised, that it is intended to prevent vagrancy and perhaps consequent crimes arising from the existence of uncared for wives and children whether legitimate or otherwise. Purpose of the provision apart, it has undoubtedly been resorted to frequently by deserted wives as an expeditious and inexpensive mode of redress. To appreciate its exact scope let me analyse the provisions so far as they relate to the maintenance of a wife. Sub-sec. I lays down that if any person having sufficient means (a) neglects or (b) refuses to maintain his wife on proof of neglect or refusal any one of the magistrates specified in the sub-section may order such person to make a monthly allowance not exceeding Rs. 500/- per month. Sub-sec. (2) relates to starting point for the payment of the allowance awarded under sub-s. (1) sub-s. (3) provides for the enforcement of the order. It is as proviso to the enforcement clause in the section which gives an alternative to the husband that he may make an offer to his wife to maintain her. If the wife "refuses to live with him" the magistrate may "consider any grounds of refusal" and if he is satisfied that she has "just ground" for doing so the magistrate may order the payment of maintenance notwithstanding such offer. It was in '49, as I have already, noted that the legislature introduced a paragraph after this proviso to say that if the husband has contracted 'marriage with another wife or keeps a mistress' it shall be considered as a just ground for his wife's refusal to live with him. Sub-sec. (4) provides that a wife forfeits her right to receive maintenance if she is living in adultery, or without any sufficient reason she refuses to live with her husband or the husband and wife are living separately by mutual consent. Again Sub-sec. (5) makes provision for the cancellation of an order made if the wife is living in adultery or refuses to live with her husband without sufficient reason or they are living separately by mutual consent. Consideration of other Sub-sections is not necessary for this case. The resultant position is that if a woman proves (a) that she is the legally wedded wife of the man complained against (b) that the husband has sufficient means to maintain her (c) that he neglects or refuses to maintain her, a competent magistrate will award her a maintenance allowance not exceeding Rs. 500/- per month unless it is shown that (i) she is living in adultery or (ii) that she refuses to live with her husband without just ground or any sufficient reason despite his offer to maintain or (iii) she is living separately by mutual consent. Now in the case before me the undisputed facts are that Shrimati Prabhati Bai is the wife of Hemchand. He has the means to support her. When she demanded maintenance in the court he came with an offer to maintain her which the wife refused to accept because she complained of his ill-treatment and adulterous relations with another woman. The plea of the husband is that he never neglected or refused to maintain her. The word "neglect'' is one of those wide words in legal literature which eludes exact definition. Nevertheless, the concept of neglect invariably presupposes a legal duty in the performance of which some default is made. In the context of the provisions of s. 488, in my opinion it would appear to mean that if a husband fails to maintain, duty to maintain having been assumed, he would appear to neglect the maintenance of his wife. The argument pleaded in the written answer to the wife's claim and vehemently urged before me is that the wife is an idiot, and the husband is not expected to "uapkar" - to use the word employed by the learned counsel after her. Assuming for a moment that the wife is weak-minded, the duty to maintain her, which expression includes looking after her becomes all the more urgent. It is admitted that in the two years preceding the date of the application the husband did nothing to maintain her. The excuse offered is that the wife has a shop gifted to her by her mother which fetches her rent. The wife has answered that the shop is the subject matter of litigation and no rent is being received therefrom. It my opinion in a proceeding under Sec. 488 of the Code of Criminal Procedure the means of the complaining wife do not debar her from claiming maintenance herself. They may be relevant in the case of child, as the material words are "or his legitimate or illegitimate child unable to maintain itself". The person "itself" according to the ordinary rules of grammar does not denote a wife but a child. Therefore it is proved beyond any question that upto the date of the application the husband neglected to maintain his wife. So far as the refusal to maintain in future is concerned the husband has deposed that he is prepared to keep her and maintain her provided she obey him. This condition is again a hurdle placed which on the husband's own showing a 'weak minded' may not be able to cross. However, the wife has alleged that the husband is carrying on with another woman. The husband says that the woman complained against was not named in the application under Sec. 488 of the Code of Criminal Procedure but her name came to be disclosed in the course of the wife's statement. Further, the fact that the woman is the husband's mother's sister makes the story entirely unacceptable. The Magistrate and learned Addl. Sess. Judge have both believed this plea of the wife and I should naturally be slow to disbelieve it. The absence of her name in the application is indeed a piece of defective drafting, instances of which are not uncommon. Sometimes, out of false delicacy also such persons are left unnamed in the beginning. The argument that she is related to the husband does not impress me very much. The woman is said to be a widow of 30 years of age and the picture presented by the wife is not impossible of comprehension to warrant rejection on that ground for an interference in revision. Now remains the argument that the wife is not entitled to refuse the offer made by the husband to live with him, his adulterous relations with another woman notwithstanding. The statute has employed three phrases which could justify a wife to refuse to Jive with her husband. In the first proviso to Sub-sec. (3) of Sec. 488 the words used are "just ground". In Sub-sec. (4) "without any sufficient reason" and in Sub-sec. (5) "without sufficient reason". In the interest of a harmonious construction I am inclined to hold that what is a "just ground" for a wife to live separate from her husband is a "sufficient reason" for her doing so. I have already pointed out that in 1949 the legislature took the pains of laying down that contracting marriage with another woman or keeping a mistress shall be considered to be a just ground for a wife refusing to live with her husband. 1 think this provision was made to set at rest the divergence of view on this subject. In the recent past Indian legislature has been ready to recognise and give its approval to the demands made by social conscience. In 1946 Hindu Married Women's Right to Separate Residence and Maintenance Act (Act No. XIX of 1946), came into existence. Judicial decisions took notice of this change and some consulted it in deciding applications made under Sec. 488 of the Code of Criminal Procedure. Then came the amendment in Sec. 488 of the Code of Criminal Procedure itself in 1949. The one set of cases lay down that the mere fact that the husband has married another wife or keeps a mistress by itself without any thing more is enough to justify a wife's refusal to live with her husband. Reference in this connection may be made to Sm. Banarsi Bai V. Ghisoolal (6), Maiki V. Hemraj (4) and Syed Ahmad V. N. P. Taj Begum (7 ). In Smt. Benarasi Bai V. Ghisoolal (6) Mr. Nigum, the learned Judicial Commissioner held that the wife was entitled to receive maintenance when the husband had admittedly contracted another marriage. In the Maiki V. Hemraj (4) Randhir Singh J. held that husband's contracting another marriage is by itself sufficient to entitle a wife to refuse the husband's offer to live together. Nothing else need be looked into. Even if the wife had been once or twice to live with the husband did not improve matters for the husband. In Syed Ahmed V. N. P. Taj Begum (7) a Muslim husband was ordered to pay maintenance to his wife because he had married another wife. Hegde, J. held that "neglect or no neglect the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. " In the second set of cases the view expressed is that even if the husband has contracted another marriage unless neglect or refusal are proved a wife is not entitled to maintenance allowance. Reference may be made to Ishar V. Soma Devi (8) Sm. Bela Rani V. Bhupal Chandra (2 ). In Ishar V. Soma Devi (8) the wife submitted a petition under Sec. 488 of the Code of Criminal Procedure claiming maintenance on the ground of mal-treatment. The husband urged that she had left the house of her own accord and he never mal-treated her. The magistrate awarded her maintenance on the ground that her husband had contracted another marriage although he refused to conclude that she was mal-treated. The Additional Session Judge recommended that the magistrate's order be set aside. Tek Chand J. agreed with the Additional Sessions Judge that mere second marriage did not entitle the wife to maintenance allowance but awarded the allowance in this case. His Lordships observed "a husband is relieved from the obligation to maintain his wife so long as she voluntarily remains suspended remains absent or misconducts herself by commiting adultery. There is no such allegation in this case. By contracting a second marriage, the relationship of husband and wife, between the parties has nor been dissolved, and the law imposes upon such a person no obligation to maintain his first wife. Even in these cases where a wife leaves her husband of her own free will without any fault of the husband, the obligation on the part of the husband to maintain her, does not come to an end, but only so long as she wilfully continues to absent herself. If during the period of her absence she has not been guilty of any matrimonial impropriety, and desires to return to the husband, his liability to maintain her revives. After having contracted second marriage, the husband can no longer, as a condition precedent to maintaining her, impose upon her an obligation that she should live with him. " In Sm. Bela Rani V. Bhupal Chandra (2) Mitter and Mukerjee JJ. construing the Criminal Procedure Code amendment of 1949 observed that second marriage does not ipso-facto establish neglect without which no allowance could be granted under S. 488 of the Code of Criminal Procedure. They held that it was not permissible to press in service the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance Act for construing Sec. 488. The wife was refused maintenance despite the husband contracting another marriage.
(3.) IN Mr. Dhan Kaur V. Niranjan Singh (1) Mehar Singh & Dna JJ. have endeavoured to reconcile the two set of cases. They have held that proof of neglect or refusal is the basis of an order under Sec. 488. Neglect or refusal may be express or implied. If the husband takes another wife in practice from this conduct neglect or refusal may be inferred excepting in rare cases. Ordinarily the husband is bound to maintain his wife unless there are circumstances which relieve him of this obligation. The wife is under an obligation to live with her husband unless she is excused on grounds considered adequate by law. Now if a wife voluntarily withdraws from the company of her husband and claims maintenance from him the husband can escape his liability by insisting that she should live with him. The wife may refuse to do so because the husband has married another wife or has a mistress in his keeping. In such circumstances is my opinion, while the husband's obligation to maintain continues the wife stands relieved of her obligation to render husband's conjugal right. If the husband does not maintain he omits to do his duty and is guilty of neglect in maintaining his wife. If he refuses to maintain her unless she live with him he is asking the wife to perform a duty of which burden law has relieved her. Examined from either angle the neglect and refusal are implied if the husband insists that he will only maintain her if she lives with him and she refuses to do so. With great respect I am of the opinion that the view taken by Ajmer, Allahabad and Mysore High Courts appears to be correct. The 1959 Punjab case also reaches the same conclusion by a different process and 1960 Panjab case recognises the same result leaving room for exceptional cases, which I regret I am unable to visualize. The husband in the case before me had been found to be keeping a mistress and the wife is perfectly justified in saying a 'no' to the offer of maintenance attended by the condition of living with him. The learned counsel urged that courts should not be swayed by sympathy for the wife and should enforce the husband's right to insist on her living with him. Courts of law have no sentiments of their own, their minds are regulated by sympathies of law which are derived from the commands of the community and expressed in the statutes, The result is that this revision application has no substance and must be dismissed. . ;