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Shankariah v. Annapurnamma .
Factual and Procedural Background
This revision petition arises from a reference made by the Chief City Magistrate-cum-Additional Sessions Judge and District Magistrate (Judicial), Hyderabad in Criminal Revision Petition No. 120/67. The reference recommended quashing an order of the Munsif Magistrate, Tandur dated June 26, 1967 in M.C. No. 1/68. The trial Magistrate had awarded maintenance at the rate of Rs. 25 per mensem to the respondent, Annapurnamma, under Section 488(1) of the Code of Criminal Procedure.
The respondent (Annapurnamma), the legally wedded wife of the petitioner (Shankaraiah), claimed maintenance under Section 488(1), Criminal P.C. on the grounds that the husband had married again and that she had been ill-treated, beaten and ultimately driven out of the house along with her children by the petitioner at the instigation of his second wife.
The husband resisted the claim, denying neglect or refusal to maintain and denying ill-treatment. He alleged that the wife had developed illicit intimacy with a forest chowkidar (Mohd. Jahangir) and had deserted him, arguing she was therefore not entitled to maintenance. The trial Magistrate awarded maintenance on the basis that the husband's imputation of unchastity was not proved. The referring Judge considered that the imputation of unchastity does not amount to legal cruelty justifying maintenance as it does not amount to neglect or refusal to maintain, and recommended quashing the trial Magistrate's order.
Legal Issues Presented
- Whether the respondent (the legally wedded wife) is entitled to claim maintenance under Section 488(1), Criminal P.C. on the ground of a false imputation of unchastity in the written statement.
- Whether the respondent is entitled to claim maintenance under Section 488(1), Criminal P.C. on the ground that her husband had married again.
Arguments of the Parties
Petitioner's (Husband's) Arguments
- The husband contended that the order of the trial Magistrate is illegal and erroneous and should be set aside.
- He denied neglect, refusal to maintain, ill-treatment, or driving the wife out; instead he alleged the wife had illicit intimacy with a named chowkidar (Mohd. Jahangir) and had deserted him, which he relied on to oppose maintenance.
- His counsel urged acceptance of the reference made by the Court below (seeking quashing of the Magistrate's order).
Respondent's (Wife's) Arguments
- The wife submitted she was entitled to maintenance under Section 488, Criminal P.C. on the sole ground that the husband had contracted a second marriage.
- She further contended that the imputation of unchastity by the husband would amount to legal cruelty justifying the grant of maintenance, and therefore the trial Court's order awarding maintenance was correct.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Syed Ahmad v. M.P. Taj Begum, AIR 1958 Mys 128 | Held that the proviso and amendment to sub-section (3) of Section 488 apply to the entire section (not confined to sub-s (3)). | Cited as supporting the view that the amendment/proviso is applicable to the entire section; the Court was inclined to agree with this view though it did not rest its decision solely on this ground. |
| Shambu Reddy v. Ghalamma, AIR 1966 Mys 311 | Mysore High Court decision aligned with the view that the amendment/proviso applies to the whole of Section 488. | Cited alongside Syed Ahmad as authority supporting applicability of the proviso/amendment to the entire section; used to indicate judicial support for that interpretation though not the sole basis of decision. |
| Tejabai v. Shankarrao, AIR 1966 Bom 48 | Bombay High Court view supporting that the proviso and amendment to sub-s (3) are applicable to the entire section. | Referenced as a supporting decision for the Court's inclination on the issue of applicability of the amendment/proviso. |
| Govindram v. Ratanbai Nathuram, AIR 1956 Sau 105 | Saurashtra High Court decision aligning with the view that the proviso/amendment applies to the entire section. | Cited as one of the authorities taking the same view on applicability of the amendment/proviso. |
| Iqbalunnisa Begum v. Habib Pasha, AIR 1961 Andh Pra 445 | Andhra Pradesh High Court view that the proviso/amendment is confined to enforcement under sub-section (3) alone. | Cited as representing the contrary view; the Court noted this earlier view but felt it required reconsideration in an appropriate case. |
| Sm. Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134 | Calcutta High Court view contrary to Mysore/Bombay — confines the proviso/amendment to sub-section (3). | Noted as one of the decisions taking the contrary position on the scope of the proviso/amendment. |
| Rupchand v. Charubala, AIR 1966 Cal 83 | Another Calcutta High Court decision taking the contrary view on applicability of the proviso/amendment. | Referenced as part of the body of case-law holding the proviso/amendment should be confined to sub-section (3). |
| Kandaswami Gounder v. Nachammal, AIR 1963 Mad 263 | Madras High Court decision taking the contrary position that the amendment/proviso is not applicable to the entire section. | Noted among authorities taking an opposite view on the scope of the amendment/proviso. |
| Subhagi Devi v. Murli Pradhan, AIR 1968 Pat 139 | Held that a claimant under Section 488(1) must prove the husband, having sufficient means, neglected or refused to maintain; without proof, Magistrate lacks jurisdiction to order maintenance. | Cited as authority for the principle that proof of neglect or refusal (in addition to sufficient means) is essential before a Magistrate can award maintenance. |
| Ramji Malviya v. Smt. Munni Devi Malviya, AIR 1959 All 767 | Allied decisions of Allahabad High Court supporting the requirement of proving neglect or refusal by the husband. | Cited as part of the consistent line of decisions that require proof of neglect/refusal for jurisdiction under Section 488(1). |
| Smt. Prabhawati Devi v. Radhey Shyam Tripathi, AIR 1965 All 598 | Another Allahabad High Court decision indicating the necessity to prove neglect/refusal by the husband. | Used to support the proposition that the Magistrate cannot award maintenance without such proof. |
| Mst. Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595 | Punjab High Court decision aligned with the principle that claimant must prove neglect or refusal by husband. | Cited among authorities establishing the requirement of proof of neglect/refusal as condition precedent to jurisdiction. |
| State v. Anwarbi, AIR 1953 Nag 133 | Nagpur High Court decision cited for the same proposition concerning proof of neglect/refusal. | Included in the list of precedents supporting the jurisdictional requirement of proof of neglect/refusal. |
| Unspecified Calcutta decision, AIR 1986 Cal 83 | Referenced by the Court as another Calcutta authority aligned with the requirement to prove neglect/refusal (as listed). | Grouped with other authorities cited for the principle that proof of neglect/refusal is essential. |
| Sita Devi v. Har Narain, AIR 1930 Lah 886 | Lahore High Court decision cited for the same proposition on proof of neglect/refusal. | Included as part of the historical authorities cited in support of the jurisdictional rule. |
| Kurma Pullamma v. Kurma Thatalingam, AIR 1945 Mad 44 | Madras High Court decision cited among those requiring proof of neglect/refusal by the husband. | Cited as part of the line of cases supporting the Court's view on necessary proof for a maintenance award under Section 488(1). |
| Senapathi Mudaliar v. Deivanai Ammal, AIR 1950 Mad 357 | Considered a wife's claim for separate maintenance on the sole ground that husband had married again; observed separate residence may be necessary and husband's offer to take back may not be sincere. | Cited to support the view that second marriage can justify separate maintenance and that returning the wife to an intolerable position is not appropriate. |
| Bayanna v. Devamma, AIR 1954 Mad 226 | Held that under Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act a first wife is entitled to live separately and claim separate maintenance when husband takes a second wife. | Cited to show that statutory entitlement to separate residence and maintenance supports treating second marriage as a ground for maintenance under Section 488(1). |
| Kandaswami Gounder v. Nachammal, AIR 1963 Mad 263 | Madras cases cited (again) as following the view that a wife is entitled to separate maintenance where husband married again. | Cited as part of the Madras line of authority recognizing separate maintenance rights for a wife when husband takes a second wife. |
| Pichi Konar v. Chellayee, (1965) 2 Mad LJ 33 | Madras decision aligning with the principle that second marriage entitles the first wife to separate maintenance. | Cited as additional authority in support of the proposition that second marriage can justify maintenance. |
| Rarijit Kaur v. Avtar Singh, AIR 1960 Punj 221 | Punjab High Court held that when husband takes second wife and refuses to maintain unless first wife lives with him, such conduct is sufficient to infer refusal and entitle the wife to maintenance under Section 488. | Cited to support the inference that refusal can be deduced from husband's conduct where he conditions maintenance on the wife's return to live with him after taking a second wife. |
Court's Reasoning and Analysis
The Court began by setting out the statutory language of Section 488(1), Criminal P.C., and emphasized the statutory prerequisites for an order under that provision: the claimant must establish that (a) the husband has sufficient means, and (b) he neglected or refused to maintain his wife (either expressly or by implied conduct). The Court stated that absence of such proof deprives the Magistrate of jurisdiction to award maintenance.
The Court addressed a connected but distinct controversy concerning the scope of an amendment to sub-section (3) of Section 488 — whether the proviso/amendment applies only to sub-section (3) or to the whole of Section 488. The Court reviewed conflicting High Court authorities: Mysore, Bombay and Saurashtra had held the proviso/amendment applies to the entire section, while Andhra Pradesh, Calcutta and Madras had taken the contrary view. The Court expressed an inclination to agree with the Mysore/Bombay view, referring to the use of the expression “an order under this section” in sub-section (3) and the content of sub-section (4). However, the Court expressly declined to rest its decision on that interpretive point because deciding that issue finally would require reference to a Division Bench and it had been previously addressed by Anantanarayana Ayyar, J., in AIR 1961 Andh Pra 445.
The Court therefore rested its conclusion on the central question of whether neglect or refusal by the husband (as required by Section 488(1)) was established in fact in the present case. It surveyed a line of authorities (from Patna, Allahabad, Punjab, Nagpur, Calcutta, Lahore and Madras) which consistently held that proof of neglect or refusal by a husband with sufficient means is essential before a Magistrate can award maintenance under Section 488(1). The Court accepted this as the correct approach and a guideline for construing Section 488.
Turning to the facts of the case, the Court considered the statutory right created by Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act (1946) and Section 5(1) of the Hindu Marriage Act, 1955. It observed that, where a Hindu husband takes a second wife, the first wife is entitled by statute to reside separately and claim separate maintenance. That statutory entitlement means the husband is under a duty to maintain her separately when she chooses to live separately pursuant to that right. Consequently, the Court held that a husband's taking of a second wife — and any consequent failure or omission to provide adequate maintenance and separate residence — can amount to "refusal" or "neglect" within the meaning of Section 488(1).
The Court cited decisions (including Senapathi Mudaliar v. Deivanai Ammal and Bayanna v. Devamma) that had accepted that a second marriage could justify separate maintenance and that a mere offer to take the wife back is not necessarily a sufficient remedy if it would leave her in an intolerable position. The Court also relied on precedent (such as Rarijit Kaur) that where a husband takes a second wife and conditions maintenance on the first wife's return to live with him, such conduct may be sufficient to infer refusal.
Because the respondent in the present case was admittedly a Hindu woman entitled to live separately by statute, the Court concluded that the husband's second marriage and failure to provide adequate separate maintenance constituted neglect or refusal for the purposes of Section 488(1). The Court therefore did not need to decide whether the wife could claim maintenance on the separate ground of false imputation of unchastity.
Holding and Implications
Holding: Reference rejected. The Court held that the award of maintenance by the trial Magistrate to the respondent under Section 488(1), Criminal P.C. at Rs. 25 per mensem was just, proper and valid and did not require setting aside.
Implications:
- Direct effect on the parties: The trial Magistrate's maintenance order in favour of the respondent (Rs. 25 per month) stands and is not quashed.
- Legal consequence explained by the Court: Where a Hindu husband takes a second wife, the first wife's statutory right to live separately and claim separate maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act may be treated as creating a basis, in conjunction with the husband's subsequent failure to provide adequate maintenance, for finding neglect or refusal within the meaning of Section 488(1), Criminal P.C.
- On the scope of the amendment/proviso to Section 488(3): The Court expressed an inclination to accept the view that the proviso and amendment apply to the whole section, but it explicitly declined to rest the present decision on that point and did not make a final pronouncement binding as a new precedent on that interpretive controversy.
- No broader binding precedent was conclusively established on the proviso/amendment question because the Court refrained from deciding that point finally; the decision's principal effect is to affirm the Magistrate's maintenance award in the facts of this case.
This summary is confined to and derived exclusively from the information contained in the provided opinion. No facts or legal propositions beyond those stated in the opinion have been introduced.
1. This revision petition arises out of the reference made by the Chief City Magistrate-cum-Additional Sessions Judge and District Magistrate (Judicial) Hyderabad in Crl. Revision Petition No. 120/67, recommending the quashing of an order of the Munsif Magistrate, Tandur dated June 26, 1967 in M.C No. 1/68 awarding maintenance to the respondent at the rate of Rs. 25 per mensem, under Sec. 488(1) of the Code of Criminal Procedure.
2. The ground on which maintenance under Section 488(1) Criminal P.C was claimed by the respondent Annapurnamma, the legally wedded wife of Shankaraiah, the petitioner, was that the husband had married again and that she was being ill-treated and beaten and ultimately driven out of the house along with her children by him at the instigation of his second wife.
3. The respondent's claim was resisted by the husband on the ground that there was no neglect or refusal to maintain her and her children, nor was there any ill-treatment, but she had developed illicit intimacy with one forest chowkidar by name Mohd. Jahangir and had deserted him and hence she is not entitled for maintenance. The trial Magistrate awarded maintenance at the rate of Rs. 25 per month on the ground that the petitioner had attributed unchastity which was not proved. The referring Judge pointed out that the imputation of unchastity does not amount to legal cruelty justifying the granting of maintenance, as it does not amount to neglect or refusal to maintain her, and recommended for quashing the order of the trial Magistrate.
4. Sri C.P Sarathi, appearing for the husband, contended that the order of the trial Magistrate is illegal and erroneous and is liable to be set aside, accepting the reference made by the Court below. Sri Balakrishna Murthy, appearing for the wife, urged that his client is entitled to have maintenance under Sec. 488, Criminal P.C on the sole ground that there was a second marriage and the imputation of unchastity would amount to legal cruelty justifying the granting of maintenance to the wife and hence, the trial Court's order is correct.
5. The point that arises for determination is whether the respondent, the legally wedded wife of the petitioner, is entitled to claim maintenance under Section 488(1), Criminal P.C on the ground of false imputation of unchastity in the written statement or on the ground that her husband had married again.
6. It is necessary and proper to examine the provisions of Section 488(1), Criminal P.C which read thus:
“If any person having sufficient means neglects 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 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.”
7. To attract the provisions of Section 488(1), Criminal P.C, it is incumbent on the wife, who claims maintenance, to establish that her husband has sufficient means but neglected or refused to maintain her. Unless and until it is established that the husband having sufficient means either neglected or refused to maintain his wife, he cannot be compelled by the Magistrate under Section 488(1), Criminal P.C to make a monthly allowance for the maintenance of his wife.
8. The amendment to sub-section (3) of Section 488 provides that the contraction of a marriage by the husband with another wife or keeping a mistress is a just ground for his wife's refusal to live with him. There is a controversy between several High Courts as to whether the amendment to sub-section (3) referred to above is applicable to the cases relating to enforcement under sub-section (3) or applicable to the main section itself.
9. The Mysore High Court in Syed Ahmad v. M.P Taj Begum, AIR 1958 Mys 128 and Shambu Reddy,… v. Ghalamma,…., AIR 1966 Mys 311, the Bombay High Court in Tejabai v. Shankarrao, AIR 1966 Bom 48 and the Saurashtra High Court in Govindram v. Ratanbai Nathuram, AIR 1956 Sau 105, have taken the view that the proviso and the amendment to sub-section (3) are applicable to the entire section and the same cannot be confined to sub-section (3) alone, whereas the High Court of Andhra Pradesh in Iqbalunnisa Begum v. Habib Pasha, AIR 1961 Andh Pra 445, the Calcutta High Court in Sm. Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134 and in Rupchand v. Charubala, AIR 1966 Cal 83 and the Madras High Court in Kandaswami Gounder v. Nachammal, AIR 1963 Mad 263, have taken the contrary view. On a reading of the proviso to sub-section (3), I am inclined to agree with the view taken by the Mysore High Court in AIR 1958 Mys 128 and AIR 1966 Mys 311 and the Bombay High Court in AIR 1966 Bom 48, which gains support from the use of the expression “an order under this section” in sub-section (3) instead of “an order under this sub-section” and on reading of sub-section (4). But I need not rest the decision in the present case on that ground which would require me to refer the case to a Division Bench as my learned brother Anantanarayana Ayyar, J., in AIR 1961 Andh Pra 445 had already expressed the view that the proviso is applicable only to cases of enforcement and must be confined to sub-section (3) but not to the entire section, although I feel that this view requires reconsideration in a proper case, when the question arises directly for consideration.
10. The next ground on which I prefer to rest my conclusion in the present case is whether neglect or refusal as contemplated by Section 488(1), Cr. P.C, has, in fact, been established either expressly or by implied conduct of the party.
11. In Subhagi Devi… v. Murli Pradhan…Opposite Party., AIR 1968 Pat 139, it was held that unless the petitioner who claims maintenance under Section 488(1) proves that her husband, having possessed of sufficient means, neglected or refused to maintain her, she will not be entitled for the awarding of maintenance and the Magistrate will have no jurisdiction to pass an order. The same view has been taken by the Allahabad High Court in Ramji Malviya…Applicant; v. Smt. Munni Devi Malviya…Opposite Party., AIR 1959 All 767 and Smt. Prabhawati Devi…Applicant; v. Radhey Shyam Tripathi…., AIR 1965 All 598, the Punjab High Court in Mst. Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595, the Nagpur High Court in State v. Anwarbi, AIR 1953 Nag 133, the Calcutta High Court in AIR 1986 Cal 83, the Lahore High Court in Sita Devi v. Har Narain, AIR 1930 Lah 886 and the Madras High Court in Kurma Pullamma v. Kurma Thatalingam, AIR 1945 Mad 44. It is true that the Magistrate is not competent to award maintenance under Section 488, Cr. P.C, unless the essential ingredients of neglect or refusal by the husband to maintain his wife are established in addition to the fact that he has sufficient means to maintain her. Without entering into the major controversy relating to the effect of the amendment to sub-section (3) of Section 488, Cr. P.C, it can be taken as one of the guide-lines for construing the main Section 488, Cr. P.C The Court is competent to arrive at a conclusion as to whether there was or no neglect or refusal in each case on the part of the husband to maintain his wife and in doing so, it can certainly take the second marriage of the husband, as one of the factors into consideration along with the other material on record.
12. Under Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, which came into force on April 23, 1946, the first wife is entitled to live separately and claim separate maintenance, when her husband takes a second wife. This statutory right would entitle her to reside separately and she is at liberty to choose to live separately and claim maintenance from her husband. It is the duty of the husband to maintain her separately, when she chooses to do so, pursuant to the statutory right given to her by the Legislature. The provisions of S. 5(1) of the Hindu Marriage Act, 1955, make it obligatory that no Hindu shall have his or her spouse living at the time of marriage and the contravention of such a condition would invalidate the marriage as void. The progressive legislation made by the Indian Parliament with the object of making monogamy as a rule of law to eradicate the social evil and injustice, should be taken into consideration in construing the provisions of Section 488(1), Cr. P.C The personal law of the Hindus entitled a Hindu woman for a separate residence and maintenance, when her husband takes a second wife during her lifetime and such marriage would be null and void. Where a Hindu woman is entitled by virtue of the statute to live separately and claim maintenance, it is the duty of the husband to maintain her accordingly, and any failure or omission on his part to provide adequate maintenance and separate residence for such a wife would, in my considered opinion, amount to refusal or neglect on the part of the husband to maintain his wife, within the meaning of Section 488(1), Cr. P.C
13. In Senapathi Mudaliar v. Deivanai Ammal, AIR 1950 Mad 357, while considering the claim of a wife for separate maintenance on the sole ground that her husband had married again, the learned Judge, Panchapakesa Ayyar, J., observed:
“The petitioner has married again and his offer to take the respondent back and treat her well cannot be taken to be sincere. Even if he takes her back, he will only make her an unpaid cook and maid for all work of himself and his second wife, an intolerable position and one to which no Court should drive a married woman.”
14. In Bayanna v. Devamma, (1953) 2 Mad LJ 522 : (AIR 1954 Mad 226), the learned Judge, Govinda Menon, J., while considering a claim of the wife for maintenance under Section 488(1), Cr. P.C, on the sole ground that her husband had married again and that she preferred to reside separately in her parents' place, observed:
“….under Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act, when the husband takes a second wife, the first wife is entitled under the law to live separately and claim separate maintenance. So her residing separately is legal and once she resided separately, the duty of the husband is to give her separate maintenance.”
15. The same view has been followed by the Madras High Court in Kandaswami Gounder v. Nachammal, AIR 1963 Mad 263 and Pichi Konar v. Chellayee, (1965) 2 Mad LJ 33. In AIR 1966 Bom 48, a Division Bench of the Bombay High Court has held that a wife living separately from her husband was entitled to claim maintenance under Section 488, Cr. P.C, on the sole ground that the husband had contracted marriage with another wife.
16. In Rarijit Kaur v. Avtar Singh, AIR 1960 Punj 221, relying upon the decision of the Saurashtra High Court in AIR 1956 Sau 105, the Punjab High Court held that where the husband had taken a second wife and he refused to maintain her unless she was agreeable to live with him, it would be sufficient to infer refusal of the husband entitling the wife for maintenance under Section 488, Cr. P.C In AIR 1958 Mys 128, while considering the claim of the wife under similar circumstances it was observed at page 131 thus:
“Neglect or no neglect, the petitioner in this Court is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. His plea that he has been compelled to take a second wife by the conduct of the first wife and her parents, is not a plea that is open to him in law. His grievance may be genuine but law does not recognise it as a good defence.”
17. The same view has been followed by a Division Bench of the Mysore High Court in AIR 1986 Mys 311 after reviewing the entire case-law on the subject. In that case, the decision of the Andhra Pradesh High Court in AIR 1961 Andh Pra 445 has been considered and dissented. The decision of my learned brother Anantanarayana Ayyar, J., in AIR 1961 Andh Pra 445 is distinguishable on the ground that the parties in that case being Muslims, the wife, who claimed maintenance under Section 488, Cr. P.C, was not entitled for separate residence and maintenance by virtue of the provisions of Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act, which is applicable only to the case of Hindu women. In the present case, the respondent, being admittedly a Hindu woman, is entitled to live separately and claim maintenance on the ground that the petitioner had married again. The mere request or offer of the husband to maintain her will not be sufficient as she is at liberty to either agree or refuse to accept the offer made by the husband. In view of my conclusion, on the second aspect, I feel it unnecessary to deal with the question whether a married woman is entitled to claim maintenance under Section 488(1), Cr. P.C, on the ground of false imputation of unchastity in the written statement or on the ground that her husband had married again.
18. In the circumstances and for the reasons indicated above, I must hold that the awarding of maintenance under Section 488(1), Cr. P.C, by the trial Magistrate to the respondent herein is just, proper and valid and it does not require to be set aside. Hence, the reference is rejected.
19. Reference rejected.
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