Ram Saran Parshotam Dass v. Soman Wati

1. This is a reference in a case arising out of proceedings under Section 488, Criminal Procedure Code, which has been referred to this Court by the Sessions Judge Ambala with a recommendation that the order of the Magistrate 1st Class Chandigarh granting maintenance should be reversed and the wife's application under S. 488, Criminal Procedure Code, be dismissed. The Magistrate had ordered the husband. Ram Saran Das to pay a monthly allowance of Rs. 20/- each for the petitioner Smt. Soma Vati and her minor son Sham Lal for their maintenance. He is to receive maintenance until he attains the age of maturity.

2. Facts giving rise to the petition under Section 488 of the Code are that Smt. Soma Vati was married to Ram Saran Das about 30 years ago and the son, Sham Lal who is now aged 16 years was born to them. According to Smt. Soma Vati's complaint her husband had kept as mistress one Smt. Bhagwanti and had refused to maintain her and her son. On these allegations, she claimed maintenance allowance of Rs. 60/- p.m for herself and for her son. The plea of the husband, Ram Saran Pas, was that she was married to him but she had become of loose morals and had abandoned him 17 years ago. He denied that Sham Lal was born to her from his loins. As she had deserted him in 1945, he married Smt. Bhagwanti in 1947 and from her there were born four children to him. The parties availed of the opportunity given by the Magistrate to produce witnesses. Smt. Soma Vati besides examining herself examined P.W 1 Shiv Ram and P.W 2 Khan Chand, both of Mubarakpur, tehsil Kharar, district Ambala. Shiv Ram P.W 1 deposed that Smt. Soma Vati who had taken residence in Mubarakpur had no source of livelihood and that she had been turned out of his house by her husband five or six years ago. She was beaten by her husband. Despite efforts made to persuade the husband to keep his wife with him he had not been prevailed upon to do so. This witness stated that the husband came to Mubarakpur several times and he was asked to keep the petitioner with him but he did not agree to it. In cross-examination he stated that the parties were fighting, civil cases between themselves. Soon after the partition, the husband was missing but joined her five six years later. In the meanwhile the wife had got some land mutated in the name of her son by representing that the husband had died and that he had not been traced.

3. The next witness produced on behalf of the wife is P.W 2 Khan Chand, who has made a similar statement. Not a single question was put to either of the two witnesses alleging any immorality and that Smt. Soma Vati was leading an adulterous life.

4. P.W 3 is Smt. Soma Vati herself and she stated she was 40 years old and was married about 30 years ago in West Punjab. She lived with her husband for about 20 years and then her husband had turned her out after giving her a beating. Out of four children born to her from him, now only Sham Lal aged about 16 was alive. She said that she had no source of income. She stated that the landed property measuring 40 Bighas in Pinjore and 70 Bighas in Sundran in police-station Mubarakpur was allotted to her son, but it was subsequently, as a result of the litigation, taken by the husband. According to her, his income is Rs. 1000/- or Rs. 1200/- per year from the land besides what he earns while doing labourer's work. She stated that Ram Sarn Das had refused to maintain her and her son. Efforts to persuade him proved to be unavailing. She also stated that last time her husband resided with her for about three months in Mubarakpur and previously too he had been visiting her. She also expressed her willingness to stay with him, but said that he was not prepared to keep her at any cost. In her cross-examination she said that her husband stayed at Ludhiana and used to visit Mubarakpur occasionally and stay with her. She, however, could not give the dates of his visits. She said that she was making her livelihood from the income of the land which was allotted to her son, but later on the allotment had been cancelled and the; land had reverted to the husband. Not a single question was put in cross-examination or any suggestion made as to her leading an immoral life.

5. R.W 1 Chuni Lal was produced to state that the husband was living in Ludhiana. R.W 2 Ram Nath stated that the husband used to do the working of stitching sacks and earning about a rupee or annas twelve a day and that he had no other means of livelihood. He did not know whether the respondent permanently resided at Ludhiana, except that he was living at Ludhiana.

6. R.W 5 is Rani Saran Das himself. He stated that while in West Punjab, Smt. Soma Vati had left him in 1945 and in 1946 he contracted a second marriage and he did not know where she had been residing since then. He then said, “if she had been a woman of good character there would have been no need for me for going for a second wife”. He has made no other allegation against her character. In cross-examination, he said, “I do not know anything about the character of the petitioner pertaining to her stay at Mubarakpur”. These are all the allegations in his statement regarding the alleged looseness of her morals. He also admitted that he had been allotted some-land in tehsil Kharar at village Sundran police station Mubarakpur and the allotment was made seven years ago. He had given this land on batai to a tenant. He also admitted having been allotted to-him 43 Bighas of land in Islam Nagar Police Station Pinjore. He stated that there was a litigation pending about this land. He denied ever having gone to the petitioner at Mubarakpur or having ever stayed with her. He also denied having given any application about her character to the Gram Panchayat.

7. On behalf of the husband, reliance has been placed upon a complaint made to the Gram Panchayat, vide Exhibit R.A It is stated in the complaint dated the 20th July, 1961, that Smt. Soma Vati had come to live in Mubarakpur and that she had brought a boy of 7 with her. About two years ago, a man by the name of Ram Sara Das came to her and she admitted him to be her husband. There was a litigation between this man and her regarding land. It was finally stated that the woman's character was bad and that she was misbehaving openly and persons of loose character frequent her house. Her conduct was resented by the respectables of the locality and the complaint ended with a request that something should be done about her. No names of the persons who were said to frequent her house were given.

8. R.W 4 Matu Ram, Sarpanch of the Panchayat of Mubarakpur, said that the residents of the Mohalla where Smt. Soma Vati resided had sent an application to the Gram Panchayat alleging that her character was not good. Copies of the complaint had been sent to the Deputy Commissioner and the Superintendent of Police of the district also. He signed the endorsement along with others that the complaint was correct (Exhibit R.A/1). In cross-examination he stated that the Gram Panchayat did not record the statements of the signatories to the application (Exhibit R.A) and no regular enquiry was conducted, at one place. It does not appear from his statement that he has any personal knowledge of the course of life that Smt. Soma Vati is alleged to be leading. His statement only shows that a complaint was received and after he had endorsed it, it was sent to the Deputy Commissioner and the Superintendent of Police.

9. The above is a resume of all the evidence placed on the record.

10. The Sessions Judge, Ambala, has referred the revision to this Court on two matters. He is firstly of the view that the Magistrate at Chandigarh had acted without jurisdiction in entertaining the application under Section 488 of the Code and, therefore, the proceedings are bad in law. Secondly, he has stated that on the facts found, Smt. Soma Vati has forfeited her right to be maintained because of the provisions of Section 488, sub-section (4) of the Code.

11. So far as the first point is concerned, he has doubted the statement of Smt. Soma Vati that her husband came to live with her in Mubarakpur and according to him it was unlikely that when the relations between them were sprained on account of litigation regarding the allotment of land he would have stayed with her. The learned Magistrate has accepted the statements of the witnesses of Smt. Soma Vati and has come to the conclusion that he (Ram Sarn Das) did reside with her within the contemplation of S. 488, sub-sec. (8) of the Code. According to the Magistrate even though the respondent had been visiting the petitioner temporarily at Mubarakpur that amounts to living together. He also concluded that they did last reside together at Mubarakpur. The learned Magistrate was also impressed by the fact that according to the admission of respondent himself, 43 Bighas of land in Islam Nagar within the jurisdiction of police station Pinjore had been allotted to Ram Sarn Das besides the allotment of other land in village Sundran in police station Mubarakpur. He thought that it was probable that the husband would be visiting Mubarakpur to look after his land.

12. According to the Magistrate, Shiv Ram and Khan Chand P. Ws residents of Mubarakpur, are respectable persons and he believed their testimony as they had no animus against the respondent and no interest in the petitioner. He also expressed the view that the respondent has not been prejudiced in any way. He was throughout represented by counsel and he had also brought a counsel from Ludhiana and arguments were addressed at length by both the counsel of the husband. Consequently, no prejudice has been caused to the husband even if it be assumed that the Court at Chandigarh had no jurisdiction. The learned Sessions Judge came to the contrary conclusion.

13. Under Section 488, sub-section (8), “proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, * * *”. Section 531 of the Code provides that no findings, sentence or order of any criminal Court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

14. The policy underlying Section 531 of the Code is to overlook irregularities on account of want of local jurisdiction unless failure of justice has been occasioned because of such irregularities. This provision cures defects relating to proceedings in a wrong forum. Neither in the elaborate order of reference of the Sessions Judge nor during the course of arguments before me has my attention been drawn to any prejudice alleged to have been suffered by the husband on account of the petition having been tried in the Court at Chandigarh and not at Ludhiana. The husband availed of the opportunity of producing his witnesses and of filing documents as his evidence. It is true that objection was raised to the local jurisdiction of the Magistrate in that Court which was overruled. In this case, the Magistrate had come to the conclusion and I think rightly that he had jurisdiction. It has not been suggested that any failure of justice has occasioned for want of local territorial jurisdiction. I do not see how the learned Sessions Judge could come to a different conclusion regarding the question of jurisdiction.

15. This very matter was referred to a Division Bench in Sardari Lal… v. Mst. Kaushalya Devi…., (S) AIR 1957 Punj 84. It was held that even a place of temporary residence is within the meaning of the word ‘resides’ in Section 488. In that case, the wife was residing in a village of the husband who was employed outside. He used to come to the village and this living together of the husband and the wife was sufficient to constitute residence within Section 488. It was held that even if the husband and the wife did not reside, Section 531 of the Code would be a complete answer to the case set up by the petitioner (husband). Reliance was placed upon Sitaram Kalwar v. Sukia Kalwarin, AIR 1929 Cal 336, Maung Paik v. Ma Ohn Sint, AIR 1939 Rang 210, and also on an unreported decision of Bhandari, C.J, in Mahnga Mai v. Raj Kumari, Cri. Revn. No. 779 of 1955 (Punj). The learned Sessions Judge in his referring order has not alluded to these cases but he has taken notice of another Division Bench case, the State v. Abdul Hamid, AIR 1957 Punj 86. In both the Punjab cases, the judgments were written by Kapur, J. In Abdul Hamid's case, AIR 1957 Punj 86 after referring to earlier Punjab decisions in Uttam Chand v. Emperor, 2 Pun Re 1902 and Lakhmi Chand v. Emperor, 24 Pun Re 1901 (FB), Kapur, J., said—

“The principle of criminal law in regard to jurisdiction where the defect sought to be set up is one of territoriality, is that unless prejudice is shown the proceedings cannot be held to be null and void.

That is the principle which is laid down in Section 531 of the Criminal Procedure Code and Section 537 lays down that in order to determine whether an irregularity in any proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”

16. While noticing this case, the learned Sessions Judge said that in that case the objection to territorial jurisdiction was raised before the High Court and not at the earliest moment. In both the above cases, the Division Bench had clearly expressed its view that Section 531 of the Code made such, irregularity curable unless a failure of justice is proved to have occurred. A clear enunciation of law by a Division Bench of this Court cannot be disregarded with impugnity by the Subordinate Courts. The learned counsel has not been able to show how facts of the instant case are distinguishable and why the principles laid down in the judgments of Kapur, J., are not attracted.

17. The Calcutta High Court in Sitaram Kalwar's case, AIR 1929 Cal 336 also expressed the view that where a Magistrate who is dealing with proceedings under Section 488 is empowered by law to deal with the application for maintenance under Section 488, passed a final order it is not vitiated merely by reason of the fact that the proceedings were held in a wrong district. Another Division Bench of the same High Court in Radharani v. Rahim Sardar, AIR 1946 Cal 459 expressed the view that Section 531 cures irregular proceedings wrongly held in a wrong local area unless it appears that the error as to territorial jurisdiction has in fact occasioned a failure of justice. It was further remarked that Section 531, does not entitle a Magistrate to proceed with the trial in the wrong local area with his eyes open to the fact that he has no territorial jurisdiction. That no doubt is true, but in this case, it cannot be said that the Magistrate arrogated to himself territorial jurisdiction knowing that he had none.

18. A similar view was also expressed by a Bench of Mysore High Court in State v. Tavara Naika, AIR 1959 Mys 193. It was held by that Bench that the curative provisions of Section 531 should not be an excuse to overlook material irregularity pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial. In this case the Magistrate did not overlook the irregularity, but examined the matter and came to the conclusion that under the provisions of Section 488(8) his Court had jurisdiction. I am thus of the view that the Magistrate had jurisdiction and even if the jurisdiction was in the Court of the Magistrate at Ludhiana, the irregularity was cured in view of the provisions of Section 531.

19. So far as the second matter is concerned, sub-section (4) of Section 488, Code of Criminal Procedure, lays down,—

“No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

20. It is not a case of the husband that he is willing to receive his wife in his house. He obviously cannot do so because he is living with a second wife Bhagwanti from whom he has children. It is no body's case that the parties are living separately by mutual consent. The only question is whether Smt. Soma Vati “is living in adultery”. While referring to the evidence I had remarked that neither she nor her witnesses were cross-examined on the auction of her living in adultery. Ram Sarn Das did not himself allege any adultery though he obliquely referred to her lapses.

21. Reliance was placed in the main upon Exhibit R-A and to this document the Sessions Judge has attached considerable importance. I do not see how a complaint given by some persons to the Gram Panchayat who further forwarded it to the Deputy Commissioner and the Superintendent of Police for some action has any evidentiary value or is an admissible piece of evidence. The applicants who stated that she is leading a loose life have not appeared as witnesses. R.W 4 Matu Ram who is a Sarpanch has not stated anything from his knowledge regarding her character. The application. Exhibit R.A, merely contains the opinions of the signatories. No instances are-cited and no persons are named who according to the applicants have committed adultery with Smt. Soma Vati. The endorsement of the Gram Panchayat is not an admissible piece of evidence. I do not see how the learned Sessions Judge could have treated Exhibit R.A and the endorsement thereon as a piece of admissible evidence. The meaning of the expression “is living in adultery” has been completely lost sight of. It is significant that the words have been put in present continuous tense.

22. Adultery referred to in this sub-section does not imply an occasional lapse or a past misconduct. It is existing and habitual adultery. That the wife is living in adultery had to be strictly substantiated and suggestion of previous-lapses or of circumstances will not suffice to deprive the wife of her right to maintenance. The provisions does not refer to an act of adultery and exvitermini neither a single act nor isolated acts of adultery would suffice, but the type of adultery I contemplated to attract the provisions of sub-section (4) of Section 488 of the Code is of the nature of a continual or recurring lapse. It has to be repetitive or habitual.

23. “Living in adultery” is living together as husband and wife and exercising sexual rights and duties implied by such relation when legally created.

24. Proof of occasional acts of illicit intercourse may fall short of what is intended by the expression ‘living in adultery’. It suggests a man and the wife of another living continually as husband and wife. An adulterous intercourse is a condition contemplating repetition of extra marital relationship when opportunity offers itself. It is a condition of cohabitation in contradistinction to occasional acts. The wife forfeits her right to be maintained on proof of repeated adulterous meetings. In this case even the allegations, if accepted as correct, do not furnish prima facie proof of conduct of what is within the contemplation of the law to deprive the wife of her right to be maintained. The evidence in this case falls far short of the requisite legal test. No case is made out for accepting the recommendation of the learned Sessions Judge for setting aside the order of the Magistrate dated 23-2-1962. I find myself in agreement with the conclusions of the Magistrate allowing maintenance of Rs. 20/- p.m to Smt. Soma Vati and of equal amount to her son Sham Lal during the latter's minority. The result, therefore, is that the petition of Ram Sarn Das stands dismissed.

GG/D.R.R

25. Revisnon petition dismissed.