J.M. SHETH
(1) This is a reference made by the learned Sessions Judge Surat under sec. 438 of the Criminal Procedure Code in Criminal Revision Application No. 22 of 1971 filed by wife Sahera against her husband opponent No. 1 against the order passed by the learned Judicial Magistrate First Class Bardoli Mandvi in Criminal Miscellaneous Application No. 8 of 1970.
(2) The applicant wife filed the aforesaid maintenance proceeding under sec. 488 of the Criminal Procedure Code (which will be hereinafter referred to as the Code) against her husband opponent No. 1 for maintenance amount. She claimed Rs. 100.00 per month by way of maintenance.
(3) The opponent husband filed his written statement Ex. 10 contending inter alia that such an application was not maintainable in view of the fact that the wife had filed a suit for restitution of conjugal rights being Parsi Matrimonial Suit No.3 of 1967 wherein he had filed his written statement and made a counter claim for judicial separation on the ground of legal cruelty.
(4) In that proceeding Parsi District Matrimonial Court Surat dismissed the wife's suit for restitution of conjugal rights and decreed the husbands claim for judicial separation on 6-12-1967. The wife filed First Appeal No. 34 of 1969 in this Court against that decree. A Division Bench of this Court dismissed that appeal on 6-11-1970. It was contended by the opponent husband that in view of this decree having been passed for judicial separation between the parties and that too on the ground of cruelty meted out to him by his wife such an application under sec. 488 of the Code was not maintainable.
(5) This contention of the opponent husband found favour with the learned Judicial Magistrate and consequently he dismissed the application with no order as to costs.
(6) Against that order the wife filed Criminal Revision Application No. 22 of 1971 in the Sessions Court at Surat. The learned Sessions Judge has made this report observing that this order cannot be sustained in law. He has made a recommendation that this order of the learned Magistrate dismissing the application of the wife for maintenance be set aside and any order that may be deemed fit be passed.
(7) It is an admitted position that the applicant wife filed the aforesaid suit for restitution of conjugal rights and that suit came to be dismissed on 6-12-1967. In the counter claim made by the husband for judicial separation on the ground of legal cruelty meted out to the husband by the wife a decree for judicial separation came to be passed in favour of the opponent husband on 5-12-1967. It is also an admitted position that the appeal filed by the wife has been dismissed by this Court on 6-11-1970. It therefore means that a decree for judicial separation stands.
(8) The present proceeding under sec. 488 of the Code has been filed by the wife against the husband on 20-2-1972. This application has been dismissed by the learned Magistrate on a preliminary ground as stated above.
(9) Sec. 488(1) of the Code which is material for our purposes reads:
(1) If any person having sufficient means neglects or refuses to maintain his wife ....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 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.
These provisions of sub-sec. (1) of sec. 488 of the Code indicate that the wife 9s entitled to such maintenance from her husband if she proves that she is the legally wedded wife and further proves that her husband has sufficient means and in spite of his having sufficient means neglects or refuses to maintain her. It is only upon proof of such neglect or refusal that the Magistrate is entitled to pass order regarding maintenance as contemplated therein
(10) Sub-sec. (4) of sec. 488 of the Code which is material four our purposes reads:
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.
This sub-sec. (4) enumerates the grounds on proof of which the wife would be dis entitled to claim maintenance as contemplated by sec. 488(1) of the Code. The first ground which would dis entitle her is her living in adultery. The second ground which would dis entitle her is available if without sufficient reason she refuses to live with her husband and the third ground is available if the husband and wife are living separately by mutual consent. If the husband is able to prove any of these grounds contemplated by sub-sec. (4) of sec. 488 of the Code the wife would be dis-entitled to claim maintenance. Admittedly the present case was not a case where allegation is made that the wife is living in adultery. A decree or judicial separation has been passed on the ground of cruelty meted out by the wife to the husband. If is significant to note that the wife had filed a matrimonial suit for the purposes of restitution of conjugal rights. It could not therefore be said that the wife was refusing to live with her husband. On the contrary she was insisting to live with her husband and for that purposes she filed the aforesaid matrimonial proceeding. It was the husband who did not want to live with the wife no doubt on the ground that it was not possible for him to live with her due to the cruelty meted out to him by the wife and he succeeded in that matrimonial proceeding to establish that fact of cruelty and consequently the decree for judicial separation came to be passed in his favour and that decree passed by the trial court came to be confirmed by this court.
(11) A short but interesting question that arises in this reference is whether on account of such a decree for judicial separation having been passed on the mere fact of the establishment of that decree jurisdiction of the Criminal Court to entertain such a proceeding under sec. 488 of the Code has been taken away. In my opinion the answer should be undoubtedly in the negative.
(12) In my opinion the jurisdiction of the Criminal Court to grant such maintenance will be taken away only if the husband is able to prove that the wife has become dis entitled to claim such maintenance on account of one of the grounds mentioned in sub-sec. (4) of sec. 488 of the Code In the instant case it is not necessary to consider the provisions of subsec. (2) of sec. 488 of the Code as it is not a case where the husband has prayed for cancellation or variation of the order passed by the learned Magistrate regarding maintenance in such a proceeding taken under sec. 488 of the Code. Contention has been taken at the earliest stage. It is significant to note that no inquiry has been made by the learned Magistrate as contemplated under sub-sec. (6) of sec. 488 of the Code. The application has come to be dismissed on a preliminary ground as said earlier.
(13) Mr. R. N. Shah learned advocate appearing for the opponent husband invited my attention to secs. 32 34 40 of the Parsi Marriage and Divorce Act 1936 will be hereinafter to as the Act). Sec. 32 of the Act enumerates the grounds for divorce. Clause (h) of that section reads: A decree or order for judicial separation has been passed against the defendant or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff and the parties have not had marital inter course for three years or more since such decree or order. Sec. 34 of the Act enumerates the grounds for judicial separation. It reads:
Any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce or on the ground that the defendant has been guilty of such cruelty to him or her or their children or has used such personal violence or has behaved in such a way as to render it in the judgment of the Court improper to compel him or her to live with the defendant.
This section indicates that the husband is entitled under this Act to get judicial separation if the wife is guilty of such cruelty to him. It was on the ground of cruelty that the decree for judicial separation has been passed.
(14) Sec. 40 of the Act indicates that the court has powers to grant permanent alimony at the time of passing any decree under this Act or subsequently thereto on application made to it for the purpose provided that the wife remains chaste and unmarried. It cannot therefore be gainsaid that the wife is entitled to make such an application for permanent alimony even subsequent to passing of such a decree for judicial separation. The question therefore that boils down is whether in view of this remedy provided under the Act this summary remedy provided by the Legislature under sec. 488 of the Code is barred. It is significant to note that it has not been pointed out to me that there is any provision which expressly states that there is such bar. It is significant to note that this summary remedy in provided under the Code for the purposes of helping the vagrants.
(15) In Danda Chenchhiah v. Danda Mangamma 1969 Criminal Law Journal 684 a single Judge of the Andhra Pradesh High Court has observed:
Pendency of petition for restitution of conjugal rights in a civil Court and the availability of a remedy under sec. 24 of to Hindu Marriage Act for maintenance during the pendency of the proceedings is no bar to the wife claiming maintenance under sec. 488. Criminal Procedure Code sec. 488 is not inconsistent with sec. 24 of the Hindu Marriage Act and hence by reason of sec 4(b) of the Hindu Marriage Act sec. 24 does not prevail over the provision under the Criminal Procedure Code.
The object of sec. 488 Criminal Procedure Code is the prevention of vagrancy and to provide neglected wives and children a cheap and speedy remedy. This remedy is irrespective of other remedies such neglected wives and children may have under their personal law or under any statute.
In Nanak Chand v. Chandra Kishore A.I.R. 1970 Supreme Court 446 the Supreme Court has made similar observations. The relevant observations are: Sec. 4(b) of the Hindu Adoptions arid Maintenance Act (1955) does not repeal or affect in any manner the provisions of sec. 488 Criminal Procedure Code. There is no inconsistency between the Maintenance Act and sec. 488 Criminal Procedure Code. Both can stand together. The scope of the two laws is different. The maintenance Act is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Sec. 488 Criminal Procedure Code provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
In view of these decisions and in the absence of any provision in the Act or in the provisions of the Code itself it cannot be said .that such a summary remedy which is a cheap and quick remedy is barred in view of the position that the wife is entitled to make an application to the matrimonial court even subsequent to the decree for getting permanent alimony.
(16) Another important question that has got to be resolved is whether simply because a decree for Judicial separation has been passed in favour of the husband the wife becomes dis entitled to take any proceeding under sec. 488 of the Code. In my opinion the wife would be dis entitled to resort to such a remedy and her claim for maintenance could be rejected only if the husband is able to prove that the case in question is one of the cases contemplated under sub sec. (4) of sec. 488 of the Code. Ipso facto on account of such a decree for judicial separation having been passed the wife would not be dis entitled to claim such maintenance.
(17) Mr. Shah appearing for the opponent husband has leaned heavily on the decision of this Court in Dahyalal Amthalal Bhagat v. Bai Madhukanta V Gujarat Law Reporter 895. Raju J. has observed therein at page 896: 4
Under sec. 488(4) Criminal Procedure Code no wife shall be entitled to receive an allowance from her husband if she is living in adultery or if without any sufficient reason she refuses to in live with her husband or if they living separately by mutual consent. It is therefore clear that if without any sufficient reason the wife refused to live with her husband she is not entitled to receive maintenance. Sub-sec. (2) of sec. 489 Cri. P. C. reads as follows :-
Where it appears to the Magistrate that in consequence of any decision of a competent civil Court any order made under sec. 488 should be cancelled or varied he shall cancel the order or as the case may be vary the same accordingly.
It is therefore clear that the Legislature has give more importance to the decision of a civil Court on points such as this.
I am in respectful agreement with the principle enunciated therein that the Legislature has given more importance to the decision of a civil Court. It is further observed therein:
Under sec. 10 of the Hindu Marriage Act the husband is entitled to judicial separation. Sec. 10(1)(a) of the said Act reads as follows:
Either party to a marriage whether solemnized before or after the commencement of the Act may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party;
(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
The Explanation to sec. 10(1) of the Hindu Marriage Act reads as follows: In this section the expression desertion with its grammatical variations and cognate expressions means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
It is therefore clear that a decree for judicial separation should not be passed if the wife without sufficient reason does not live with her husband. The fact that a decree for judicial separation has been passed means that wife has no reasonable ground not to live with her husband. In such a case it is clear that sub-sec. (4) of sec. 488 Criminal Procedure Code applies and the wife is not entitled to maintenance.
On close scrutiny of this decision it clearly appears that the learned single Judge came to the conclusion that the provisions of sub-sec. (4) of sec. 488 of the Code were attracted as there was no reasonable ground for the wife not to live with her husband. It was a case where a decree for judicial separation was passed on the ground of desertion by the wife. This decision in my opinion does not lay down any broad proposition as has been canvassed by Mr. Shah before me that the moment a decree for judicial separation in passed for whatever ground the hands of the Criminal Court are stayed and the jurisdiction of Criminal Court to grant any such maintenance in a proceeding under sec. 488 of the Code is barred.
(18) Mr. Shah also leaned heavily in support of his argument on the decision of a single Judge of Allahabad High Court in Ravindra Kaur v. Achant Swaroop A.I.R. 1956 Allahabad 133. At page 134 the observations made by Tripathi J. are:
Sub-sec. (4) of sec. 488 Cr. P. C. provide that no wife shall be entitled to receive any allowance from her husband....if without any sufficient reason she refuses to live with her husband. It is therefore clear that in view of the decree passed by the civil Court granting judicial separation to the opposite party the applicant cannot be held entitled to receive maintenance allowance from him and under the law it was the duty of the Magistrate to have noticed the decision of the civil Court as provided under sub-sec. 82) of sec. 489 of the Code even though there was no specific application under that section before he. It is significant to note that in para 4 it has been stated:
Judicial separation can be obtained by either party to a marriage inter alia also on the ground that the other party has deserted him or her for a continuous period of not less than two years immediately proceeding the presentation of the petition under sec. 10 of the Hindu Marriage Act of 1955. The allegation made by the opposite party before the Magistrate was that he had the decree for judicial separation on this ground.
It therefore means that in that case also a decree for judicial separation was passed on the ground of desertion by the wife. It was on those facts and circumstances of the case that Tripathi J. held it was a case where the wife refused to live with her husband without sufficient reason and consequently the provisions of sub-sec. (4) of sec. 488 of the Code were attracted.
(19) Mr. S. N. Shelat appearing for the petitioner wife at the very outset of the hearing of this reference invited my attention to all these decisions and explained them on the aforesaid grounds and in support of his argument relied upon the later decision of the Allahabad High Court in Nathu Ram v. Smt. Atar Kunwar A.I.R. 1969 Allahabad 191. Gangeshwar Prasad J. has considered the provisions of sec. 488 of the Code and has also considered the in of the aforesaid decision of the Allahabad High Court and made the following observations at page 193 in paras 4 and 5 :
A careful reading of the decision would however make it clear that it does not lay down the broad proposition on which the reference is based. It will be noticed that before pronouncing upon the effect of the decree for judicial separation which was pleaded in that case as a bar to the claim for maintenance allowance Tripathi J. who decided the above case (A.I.R. 1966 All. 133) said :
Judicial separation can be obtained by either party to a marriage inter alia also on the ground that the other party has deserted him or her for a continuous period of not less than two years immediately preceding the presentation of the petition under sec. 10 of the Hindu Marriage Act of the 1955. The allegation made by the opposite party before the Magistrate was that he had obtained the decree for judicial separation on the ground.
..........The conclusion obviously is that the decree for judicial separation passed against the wife in that case was found to be based on the fact that she had refused to live with her husband without any sufficient reason and it was on that account that she was held to be dis entitled to receive an allowance. There is nothing in the decision to suggest that decree for judicial separation in itself and irrespective of the facts on which it is based must in all cases preclude a claim for maintenance by a wife under sec. 488 Cr. P.C. and the learned Civil Judge and Sessions Judge has to my mind failed to appreciate the true basis and import of the decision.
Neither the Criminal procedure Code nor the Hindu Marriage Act any where provides that a decree for judicial separation operates as a bar to a claim for maintenance under sec. 488 of the former enactment and there can consequently be no warrant for holding that it has that effect. Of course if the decree goes to establish any fact which on the former enactment and there can consequently bare fact of the decree but the establishment by means of the decree of any of these facts which according to sec. 488 Cr. P.C. disentitle a wife to claim for maintenance If the decree for judicial separation does not establish any such fact it cannot obviously take away the right conferred upon a wife by sec. 488 Cr. P.C.
In my opinion that decision lays down the correct ratio and I am in respectful argument with it. It is true that in that case on the merits the wife's claim in this behalf was rejected as the case was covered by the categories of cases contemplated by sub-sec. (4) of sec. 488 of the Code. It is significant to note that in that case sometimes in 1964 Nathu Ram the husband instituted a proceeding under sec. 10 of the Hindu Marriage Act against wife Smt. Atar Kunwar praying for a decree for judicial separation. In that proceeding Smt. Atar Kunwar filed an application been living with her father and had not gone to her husband Nathu Ram and further that she was neither prepared to go to him then nor would she go to him ever after wards. The prayer in the application was that the decree claimed by the plaintiff be passed. A decree for judicial separation was accordingly passed by the Civil Judge of oral on 13 11-1964. In view of these facts and circumstances at page 194 in para 8 it was observed :
It is true that separate living of a couple brought about only by the force of circumstances wantonly created by the husband cannot be said to be by mutual consent. An unwilling submission to the compulsion of such circumstances on the part of the wife who finds herself helpless in face of them cannot constitute consent. But when such is not the case and the separate living proceeds from the common desire of the husband and the wife to live separately whatever the reason for the desire may be it is certainly by mutual consent. In the instant case the husband Nathu Ram obviously expressed his desire to live separately by instituting a proceeding for judicial separation. The wife Smt. Atar Kunwar did not oppose the petition of her husband and prayed that a decree for judicial separation be passed. As already noted she further stated that she was living with her father for the preceding three years and was not prepared to go to her husband then or ever afterwards. It was on the basis of this statement of Smt. Atar Kunwar which was expressive of her own desire that the decree for judicial separation was passed. The decree therefore only conferred the sanction of the court upon what both the parties desired and gave rise to certain legal consequences which they themselves wanted to bring about. Whatever might originally have been the reason for the separate living I think that from the date of the consent decree for judicial separation passed on 13 if not from 10-11-1964 when Smt. Atar Kunwar made an application praying that such a decree be passed the parties must be regarded as having started living separately by mutual consent. This separate living did not have for its basis the decree for judicial separation but the mutual consent on which the decree was itself founded.
It is thus evident that on the merits it was found that the case was covered by the third category of cases contemplated by sub-sec. (4) of sec. 488 of the Code. In the instant case it is not found by the learned Magistrate that the case was covered by any of the three categories of cases contemplated by sub-sec. (4) of sec. 488 of the Code. The learned Magistrate was therefore not justified in rejecting this application filed be the wife under sec. 488 of the Code on the preliminary ground.
(20) The reference is therefore accepted. The order passed by the learned Judicial Magistrate First Class Bardoli Mandvi dismissing the application on a preliminary ground by an order dated 20-2-1971 is set aside and he is directed to proceed further with the application and dispose it of according to law. Rule is made absolute.
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