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State Of Madhya Pradesh v. Mst. Deobati

Madhya Pradesh High Court

Feb 23, 1960

Judgment

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Structured Summary of the Provided Opinion

Factual and Procedural Background

This is a reference made by the Additional Sessions Judge, Jabalpur (described in the opinion as a reference under Section 438 of the Cr. P. C.), recommending that the Magistrate's order be set aside and that Shrimati Deobati be granted maintenance of at least Rs. 20 per month and Rs. 5 per month for her daughter with effect from 24-2-1958 (the date of her Section 488 Cr. P. C. application).

Relevant factual chronology contained in the opinion:

Shrimati Deobati was married to Dashrathprasad in 1948.
In 1953 Dashrathprasad took a second wife. A dispute followed and the husband instituted a suit for restitution of conjugal rights, which concluded in a compromise decree with seven enumerated terms (including restitution of conjugal company, conditions about separation, non-ill-treatment, delivery of ornaments, rights to claim maintenance on breach, and costs).
Deobati resumed living with her husband after the compromise, but later the couple separated again; Deobati gave birth to a daughter on 9-12-1957.
On 24-2-1958 Deobati applied under Section 488 of the Cr. P. C., alleging she had been turned out in March 1957 and was being refused maintenance; she claimed Rs. 50 per month for herself and Rs. 25 per month for the daughter. The Magistrate dismissed her application after recording evidence, finding she had not proved neglect or refusal by the husband.
Deobati filed a revision; the Additional Sessions Judge held that, in view of Sub-section (3) of Section 488 Cr. P. C., the Section 488 application should have been allowed and made a reference recommending the Magistrate's order be set aside and the maintenance awarded from 24-2-1958.

Legal Issues Presented

Whether an application under Section 488 Cr. P. C. can be allowed where the wife alleges the husband has neglected or refused to maintain her, particularly after the husband has taken a second wife.
Whether the existence of a decree for restitution of conjugal rights (obtained by the husband) precludes criminal-court inquiry under Section 488 into allegations of neglect or refusal to maintain.
Whether the Magistrate's finding (dismissing the Section 488 application for lack of proof of neglect/refusal) should be set aside and maintenance awarded with effect from the date of the application (24-2-1958).

Arguments of the Parties

Respondent (Dashrathprasad) — Arguments presented by Shri Y. P. Verma

Deobati was aware of and had agreed to the husband's second marriage, as shown by the compromise decree in the suit for restitution of conjugal rights.
The civil-court decree (for restitution) cannot be set aside or nullified merely by an application under Section 488 Cr. P. C.; Deobati has remedies in the Civil Court rather than in these criminal proceedings.
The Magistrate's factual finding (that there was no neglect or refusal to maintain) should be given due weight; there is no evidence to accept her allegation of neglect or refusal.
Counsel relied on several authorities (cases) to support these contentions (the opinion lists those citations).

Applicant (Shrimati Deobati) — Arguments presented by Shri D. P. Verma

Deobati sought maintenance under Section 488; following the Additional Sessions Judge's reference, her counsel also contended that the amounts recommended (Rs. 20 and Rs. 5) were inadequate in view of contemporary dearness.
With respect to the adequacy of the award, the court noted the procedural point that any upward claim should have been made earlier so that proper notice could be given to the other side, and found insufficient evidentiary support for the applicant's assertion of larger husband/family incomes or holdings.

Table of Precedents Cited

The table below lists every case cited in the opinion and records how the opinion treats or applies each citation, using only information explicitly contained in the opinion.

Precedent	Rule or Principle Cited For	Application by the Court
State v. Mt. Anwarbi, AIR 1953 Nag 133	Relied upon by respondent's counsel to support the proposition that a civil decree (for restitution of conjugal rights) bears on the permissibility of a Section 488 enquiry.	The court noted the case was relied upon by the husband’s counsel; after considering the authorities cited for the husband, the court found the cases relied upon were not applicable to the facts of the present case.
State of M. P. v. Mst. Sbrimati, 1958 MPLJ Notes 36 (Cri Revn. No. 366 of 1957, D/‑ 23-1-1958)	Relied upon by respondent's counsel in support of the same general proposition regarding effect of civil decree on criminal proceedings under Section 488.	The court recorded that the reports of the cases cited on behalf of the husband were not applicable to this case.
Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134	Relied upon by respondent's counsel to argue limitations on a Section 488 enquiry in the face of civil proceedings/decree.	The court found the body of cases cited for the husband inapplicable to the present facts.
Mst. Roshan Bano v. Azim, AIR 1943 Lah 59	Relied upon by respondent's counsel for propositions relevant to the interplay between civil decrees for restitution and claims of neglect/refusal under criminal procedure.	The court observed that those cases were not applicable to the present circumstances.
Mohd. Siddiq v. Mst. Zubeda Khatoon, AIR 1952 All 616 (2)	The opinion quotes this authority for the proposition that a civil decree for restitution is equivalent to a civil court decision that the wife had no sufficient reason for refusing to live with the husband and that a criminal court cannot inquire into allegations of failure or neglect to maintain prior to such a decision; also for the proposition that if a wife chooses to live apart for advantage she cannot claim husband neglected or refused to maintain her.	The court reproduced the passages relied upon from this case but held explicitly that that decision was "inapposite" to the present facts. The court also expressed doubt about the broader applicability of the latter quoted observation in light of Section 18 of the Hindu Maintenance Act, 1956 and the proviso to Section 488(3) Cr. P. C., and concluded that the Mohd. Siddiq principle did not govern the present case because the criminal proceedings were not inquiring into neglect "prior to" the civil decision and because evidence (Ex. P.1) showed a refusal to maintain by the husband.

Court's Reasoning and Analysis

The court's reasoning proceeds in a stepwise fashion; the summary below follows the court's own structure and relies solely on the reasoning given in the opinion.

Threshold requirement under Section 488 Cr. P. C.: The court emphasised that the first requirement for relief under Section 488 is proof that the non-applicant (the husband) has neglected or refused to maintain the applicant (the wife). The mere fact of a second marriage is not by itself sufficient to establish neglect or refusal to maintain.
Distinction between neglect of society and neglect to maintain: The court explained a conceptual distinction the opinion adopts — denial of connubium (refusal of marital intercourse or society) is different from refusal to maintain (financial maintenance). Section 488 applies to neglect "to maintain".
Personal-law and statutory context: The court referred to personal law principles that the husband's obligation to maintain the wife arises from the marital relationship, and expressly cited Section 18 of the Hindu Maintenance Act, 1956 to show the contemporary legislative statement that a Hindu wife is entitled to live separately and yet claim maintenance inter alia if the husband has another wife living (subject to specified disqualifications).
Evidence of refusal to maintain in this case: The court relied on a specific document — the husband's notice dated 17-6-1957 (marked Ex. P.1) and admitted by him — as directly expressing a refusal to maintain Deobati. The court reproduced clauses (5) and (6) of that notice (in the opinion) and concluded that the notice contained no offer to maintain and therefore constituted an explicit refusal to maintain.
Assessment of the husband's factual denial: The husband had denied neglect and asserted willingness to live with and maintain his wife. The court found that assertion inconsistent with the contents of Ex. P.1 and therefore could not accept the husband's pleaded readiness to maintain in the face of that notice.
Treatment of precedents relied upon by the husband: The court inspected the cases cited by the husband's counsel (including Mohd. Siddiq). For Mohd. Siddiq the court quoted the relevant passages but found the authority inapplicable because (a) the present criminal proceeding was not an inquiry into neglect "prior to" the civil decision, and (b) the court expressed doubts about the quoted generalization in that precedent in light of Section 18 of the Maintenance Act and the proviso to Section 488(3) Cr. P. C. More generally the court found the cases relied upon by the husband not applicable to the facts of this case.
Distinct treatment of the child's claim: The court observed the daughter's claim is independent of the restitution decree and that the father's liability to maintain the child stands separately.
Conclusion of analysis: On the basis of the above analysis and the admitted contents of Ex. P.1, the court concluded that a case under Section 488 had been fully made out and that the application should be allowed.
On the question of the quantum of maintenance: The court addressed a submission that the recommended amounts were inadequate. It observed procedural limitations (the submission should have been made earlier to give notice to the other side) and reviewed the evidentiary record regarding the husband's income: admitted salary of Rs. 63 per month and an asserted agricultural income of ~Rs. 50 per year; the court found no reliable evidence supporting the wife's claim of larger family holdings and therefore did not increase the sum recommended in the reference.

Holding and Implications

Holding: The court accepted the reference and directed that Dashrathprasad pay maintenance of Rs. 20 per month to Shrimati Deobati and Rs. 5 per month for the daughter, effective from 24-2-1958, payable regularly by the 10th day of every calendar month.

Implications (as stated in the opinion):

The direct and immediate consequence is the maintenance payment order in favour of the wife and child as set out above.
The court indicated that the husband remains free to seek relief under the civil decree for restitution of conjugal rights by executing that decree in the Civil Court; the opinion expressly refrained from expressing any opinion on the efficacy of such civil remedies in these proceedings.
The opinion states that no broader legal principle was newly established by this decision; instead, the court applied existing statutory provisions (notably Section 488 Cr. P. C. and Section 18 of the Hindu Maintenance Act, 1956) and judicial reasoning to the facts and found the previously cited decisions relied on by the husband not to govern this factual situation.

This summary is restricted to and composed from the contents of the provided opinion. No information beyond the opinion text has been added or inferred.

Show all summary ...

1. This is a reference under Section438 of the Cr. P. C. made by the Additional Sessions Judge, Jabalpur recommending that the order passed by the Magistrate be set aside and Shrimati Deobati be granted at least Rs. 20 p.m. and her daughter Rs. 5/ p.m. as maintenance with effect from 24-2-1958 (the date of her application under Section488 of the Cr. P. C.).

2. It appears that Shrimati Deobati was married to Dashrathprasad in the year 1948. Thereafter in the year 1953 Dashrathprasad took another wife it seems that there arose some dispute between the husband and the first wife which led to a suit for restitution of conjugal rights instituted by the husband. A decree was passed in that suit on the basis of a compromise arrived at between the parties. The terms of the compromise were these:

(i) That the defendant shall restitute to the plaintiff the conjugal company by the defendant No. 3.

(ii) That the plaintiff shall keep the defendant No. 3 separate from his other wife and bis parents except on special occasions and festivals.

(iii) That the plaintiff shall not illtreat the defendant No. 3 hereafter.

fiv) That the plaintiff shall give to the defendant the ornaments described at the foot of the compromise petition before her conjugal company is restituted to him.

(v) That the plaintiff shall not refuse to send the defendant No. 3 to her parents when called but the defendant No. 3 shall also be bound to go to her parents only with the consent and approval of the plaintiff.

(vi) That the defendant No. 3 shall become entitled to claim: maintenance in case the plaintiff commits breach of any of the above terms and the plaintiff shall then be bound to give maintenance to her: and

(vii) That the parties shall bear their own costs as incurred by them except that the plaintiff shall pay Rs. 50/- to the defendant No. 3 towards the costs incurred by her.

It is an undisputed fact that Shrimati Deobati resumed living with her husband. Thereafter again the couple broke out and On 9-12-1957 Deobati gave birth to a daughter.

3. On 24-2-1958, Deobati made an application under Section488 of the Cr. P. C. alleging that she was turned out by her husband from his house in March 1957 and was refusing to maintain her and further that he had already taken a second wife in the year 1953. She, therefore, claimed maintenance of Rs. 50/ p.m. for herself and Rs. 25/ p.m. for the daughter. Dashrathprasad resisted this application by his written statement and denied any neglect or refusal on his part. He stated that he never refused to maintain her and was 'ever ready and is still ready to live with her". Deobati was accused of having left him. The learned Magistrate after recording evidence of the parties dismissed the application holding that she could not prove either refusal or neglect on the part of the husband.

4. Shrimati Deobati went in revision and the Additional Sessions Judge, Jabalpur has found that in view of Sub-section (3) of Section 488 of the Cr. P. C. the application under Section488 should have been allowed.

5. Shri Y. P. Verma appearing for Dashrathprasad vehemently opposes the reference. Learned counsel urges that Shrimati Deobati was aware of the second marriage, that she had agreed to it as is evident from the compromise decree which was passed in the suit for restitution of conjugal rights, that the decree passed by the Civil Court cannot be set at naught just by making an application under Section488 o£ the Cr. P. C., that she has her remedy in the Civil Court, that the finding of fact arrived at by the Magistrate must be given due weight and that there is no evidence on the record to believe her allegation of neglect or refusal on the part of the husband. Learned counsel relies on State v. Mt. Anwarbi, AIR 1953 Nag 133, State of M. P. v. Mst. Sbrimati, 1958 MPLJ Notes 36: Cri Revn. No 366 of 1957, D/- 23-1-1958, Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134 Mst. Roshan Bano v. Azim, AIR 1943 Lah 59 and Mohd. Siddiq v. Mst. Zubeda Khatoon, AIR 1952 All 616(2). A great deal of stress is laid on the fact that a decree for restitution of conjugal rights was passed and Shrimati Deobati was bound to obey that decree and to live with him.

6. Having given my anxious consideration to the arguments of the learned counsel I have formed the view that this reference must be accepted. In the present case there is no doubt that the first requirement of Section488 of the Code of Criminal Procedure is that there must be neglect or refusal on the part of the non-applicant and that it is not sufficient for the purposes of Section488, Cr. P. C., that the husband contracted marriage with another wife. The fact of having a second wife entitles the first wife to refuse to live with the husband and at the same time claim maintenance under Section488 of the Cr. P. C., but then the first condition, that he neglects or refuses to maintain her has to be established. The mere fact that a second wife has been taken does not necessarily mean that the husband neglects or refused to maintain the first wife. A denial of connubium in the sense of marital intercourse or refusal of consortium in the sense of avoiding society of the spouse may prove the husband's neglect of the first wife. But a distinction must be drawn between "neglecting her" and "neglecting to maintain her". Section 488 relates only to a neglect to maintain. According to the personal law of the parties, it is the right of the wife to be maintained by the husband and this right is an incident of the status or state of matrimony. The obligation of the husband to maintain her is personal in character and arises from the very existence of their relationship by marriage. Notions of Hindu society have changed and it is the Parliament which has expressed what the current notions are. They are deposited in Section 18 of the Hindu Maintenance Act, 1956 which provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance inter alia if he has any other wife living. She is disentitled to that right if she is unchaste or ceases to be Hindu.

7. It is unnecessary for the purposes of this case to dilate upon these rights any further because Dashrathprasad's notice dated 17-6-1957, marked Ex. P. 1, and admitted by him in his statement, clearly expresses a refusal to maintain her. In this notice Deobati bas been accused of committing breach of the compromise which was arrived at between the parties in the suit for restitution of conjugal rights and she was asked to explain several things. However, there was no allegation of unchastity. But then Clauses (5) and (6) of that notice which, it will be useful to reproduce here, undoubtedly show that he refused to maintain her:

(5) तुमस हमारे पास रहत हुए हमारी जान को खतरा है जैसा कि तुमन एक बार खाने पीने में छल कपट किया जिससे मैं मरते मरते बचा। इसकी मा सबूती मेरे पास है। इस विषय में क्या कहना है? जवाब दो। (6) इस लिये में तुम्हे अपनी स्त्री बनाकर नही रखना चाहता। This supports her statement. In the notice there is no offer to maintain her. In this situation the argument of Shri Y. P. Verma that the husband never neglected or refused to maintain her but was and is still ready and. willing to maintain her cannot be accepted. It is an impossible situation that in these circumstances the husband wants her to live with him or the wife can live with him. Having perused the reports of the cases cited on behalf of the husband, I find that they are not applicable to this case. As regards the decree for restitution of conjugal rights it is open to Dashrathprasad to execute it and seek his remedy in the Civil Court if he is advised that it can be of any relief to him. I need not express any opinion about it in these proceedings. In AIR 1952 All 616 (2) it was held:

"The decision in a suit against the wife for restitution of conjugal rights is equivalent to a decision by a competent Civil Court that the wife had no sufficient reason for refusing to live with her husband and the criminal Court cannot inquire into any allegations of failure or neglect to maintain prior to such decision."

"If the wife chooses for purposes of some advantage to herself not to live with her husband she cannot say that it is the husband who has neglected her or refused to maintain her."

That case is inapposite here. This is not a case where the criminal Court in proceedings under Section 488 Cr. P. C., is enquiring into any allegations of failure or neglect to maintain "prior to" the decision in the Civil suit. As regards the last observations quoted above, firstly I have my own doubts whether they are in accord with the present notions of the Hindu society as reflected in Section18 of the Maintenance Act, 1956 and in the proviso to Section 488(3) of the Cr. P. C. Secondly, this is not a simple case of the wife choosing to live apart but by Ex. P. I he refused to maintain her as his wife. As regards the daughter, she was born in 1957 and she has no concern with the decree for restitution of conjugal rights in any way. The liability of the father to maintain her is quite separate from it. For these reasons I am satisfied that a case under Section488 has been fully made out and the application must be allowed.

8. In conclusion Shri D. P. Verma, learned counsel for Shrimati Deobati appealed to me that the amount recommended in the reference is too inadequate to afford subsistence in these days of dearness. In the first place, this prayer should have been made earlier by an application so that notice could be given to the other side; moreover it appears from the record that the income of the husband is Rs. 63/ p.m. by way of salary as he is a school-teacher. Besides that income, he asserted in his written-statement that his income by agriculture was about Rs. 50/ per year as he had to sub-let the land being personally unable to cultivate it. I am asked to believe the statement of Deobati wherein she stated that Dashrathprasad and his father had a larger holding than what he had admitted. Learned counsel could not point out to me any evidence to show that Dashrathprasad was joint with his father nor any evidence to support her statement.

9. The result is that the reference is accepted and Dashrathprasad is directed to pay maintenance of Rs. 20/ p.m. to Shrimati Deobati and Rs. 5/ p.m. for the daughter with effect from 24-2-1958, regularly by 10th day of every calendar month.