JAS RAJ CHOPRA,J. - (1.) THIS petition is directed against the order of the learned Judicial Magistrate No. 4, Jodhpur dated 19 -10 -1984 whereby the learned lower court has held that the petitioner be sentenced to one month's imprisonment for every default of Rs. 100/ -. In this case, Rs. 5,472/ -were due against the petitioner as maintenance allowance and therefore, the petitioner has been sentenced to 54 months' imprisonment.
(2.) AGGRIEVED against this judgment, the petitioner has filed this petition. The petitioner has submitted that after this case was remanded back this court vide its order dated 28 -8 -1984, he has filed an application before the learned lower court under Section 125(3) Cr. PC signifying his desire to maintain his wife on the condition of her living with him. According to him, his application should have been enquired into by the learned Magistrate but the learned Magistrate has dismissed his request without enquiring into that application. He has further submitted that although he has contracted the second marriage but his second wife has expired and, therefore, now he wants to maintain his wife by keeping her with him. According to the petitioner, this order of the learned lower court is illegal and contrary to law. The petitioner has submitted that he has crossed the sexual age and, therefore, there is no question of his having sexual mentality towards his wife. According to the petitioner, the learned lower court has even failed to call his wife to enquire from her whether she is ready to live with him ? He has submitted that the order under challenge is violative of Article 21 of the Constitution because no person can be deprived of life and personal liberty except according to the procedure established by law and it is his fundamental right to have his wife with him and if she denies her society to him then that will affect his life adversely. In support of his contention that an enquiry should have been held, he has placed reliance on a decision of the Allahabad High Court in Laxmi Narain v. State : AIR1959All556 where in it has been observed as under: The provision in Section 488(3) that the Magistrate may issue a warrant not with standing the husband's offer to maintain his wife, itself contemplates that the offer has been made before the issue of warrant. The surest way of ensuring that the husband has been afforded an opportunity of making such an offer before a warrant is issued by issuing a notice to him to show cause why a warrant should not be issued. The provision in Sub -section (6) to Section 488 also indicates thus a notice should be given to the husband and an enquiry should be made in his presence before issuing a warrant. The Magistrate must have evidence to satisfy himself that a warrant should be issued. An order passed by a Magistrate without issuing a notice and holding an enquiry is illegal.
(3.) THE petitioner has submitted that the observations of the learned Magistrate about his mental sexual hunger and about the content of his wife that there is a danger to her life if she goes and lives with her husband is without basis. There is no evidence on record to substantiate these observations. However, he has admitted that he contracted a second marriage and his second wife died in the year 1973 and so, he is now entitled to have the company of his first wife.;