K. Lahiri, J.
1. I glanced at the Reference and had a look at it. I have no hesitation in arriving at the conclusion that it has been so referred by Shri B. L. Hansaria, Sessions Judge at Jorhat awed by some observations made in some of the decisions of the High Courts, His depression, despair and helplessness to confront the situation is obvious from the wavering letter of reference.
2. The Judge has recommended for modification of an order passed by the Sub-divisional Magistrate (Judl), Golaghat Under Section 488 of the Cr. P. C. awarding a paltry sum of Rs. 50/- per month to provide maintenance to the young wife aged hardly 24 or 25 years, at all relevant period, for the failure or neglect of her husband to support her.
3. An application was filed by Smt. Sarumai Nath Under Section 488 of the Cr. P. C. 1898, praying for her maintenance and also for her son, She states that she is the wife of the second party and was lawfully married and had a boy child out of the wed-lock, As she was ill she had gone to her mother's house for having treatment in the month of Kartika, 1971 (corresponding to October/November, 1971). While she was so staying in her mother's house, she got the Information about the second marriage of her husband, Shri Lalit Mohan Bora, The marriage, according to her, took place in the month of Ghaitra (corresponding to March, 1972). Her case is that she was unable to maintain herself and her son and that her husband having had sufficient means had neglected and refused to maintain them. She claimed maintenance for herself and her child at the rate of Rs. 150/- per month.
4. The claim is resisted by her husband and his case is that the applicant did not care to return back to his house in spite of his directions, He claims that a registered notice was served on Ms wife asking her to return back and thereafter he got a Panchayat convened on 14th December, 1971 that is to say about 1 or 2 months after she had left his house ; yet she did not attend the Panchayat meeting and, accordingly, the Panchayat decided that he would be free to act in the way he liked. The second marriage was held in the month of Chaitra, 1971 (corresponding to March, 1972). It appears from the records of the case that the applicant has examined Dr. P. Kalita as witness No. 4 to prove that she was really ill from 3-11-71 to 16-11-71.
5. The simple case of the Opposite party-husband is that the applicant disentitled herself to get any sum for her maintenance as she had refused to live with him without any sufficient reason.
6. The Trial Court has held that the said acts and conduct of the wife was sufficient to establish that she had refused to come back and live with her husband for a couple of months. But the learned Magistrate granted her maintenance on being satisfied about the second marriage of the Opposite Party-husband held in the month of March, 1972. The learned Magistrate has awarded a sum of Rs. 50/- per month to the applicant wife and also a sum of Rs. 30/- per month for the maintenance of the child. The learned Magistrate has, however, granted the said maintenance on and from 11-8-73 until further orders, He has directed to pay the amount of maintenance at the rate quoted above regularly on the 11th of each month.
7. Being aggrieved by the said order D/- 11-8-73 passed by Shri P. C. Barpujari, Sub-Divisional Magistrate (Judl), Golaghat in Misc. Case 54 of 1972 the Opposite Party-husband filed an application Under Sections 435/438 of the Code before the Sessions Judge at Jorihat, The learned Sessions Judge on hearing the parties has held that this is a fit case in which the order relating to the award of Rs. 50/- for fine maintenance of the wife merits interference by this Court. The reason which prompted the Judge to make the reference is that the wife had refused to return back and live with her husband was a finding of fact arrived at by the trial Court and as such, she was not entitled to get any maintenance Under Section 488(4) of the Cr. P. C. As the wife did not respond to the letter written to her by her husband sometime in October/November, 1971, the said act or silence amounted to refusal on the part of the wife to live with her husband without any sufficient reason disentitling the applicant to get any maintenance under the law. The learned Judge was in grave doubt as to whether the second marriage celebrated in March, 1972 was the natural and direct consequence of the applicant's refusal to live with husband. According to the learned Judge, the husband did remarry and it could have been due to the conduct of the wife in not responding to the letter which amounted to refusal to live with her husband. The learned Judge held that the wife had refused to come and live with her husband in spite of the invitation offered by him to her as such, the applicant was not entitled to claim any maintenance, even on the ground of the second marriage of her husband. These are in short, the reasons on the basis of which the present recommendation has been made to set aside the order of maintenance awarded in favour of the wife. In the course of his reasonings, the learned Judge has relied upon some of the decisions of High Courts, In view of the findings arrived at by the trial Court, I must hold that the young wife along with the child left her husband's place and lived with her mother and in fact did not return back to her husband's house in spite of the receipt of the notice from him, I find it to be a finding of fact concluded by the trial court that the wife left her husband's house in October/November, 197l ; she was asked to return back in November, Dec. 1971 ; as such her stay between the period was only for a couple of months, I find that the second marriage was performed by the husband in March, 1972, that is, within 3 months of her alleged refusal to return back to her husband. In order to appreciate the entire position, I have looked into the records to satisfy myself as to Whether she Is literate or not and I find that she could only put her thumb impression. This is Indicative of the fact that she is illiterate, in the instant case, there is no direct evidence of her actual refusal excepting her conduct in not responding to the letter written by her husband to return back and secondly not to attend the Panchayat meeting. However, these conducts ought to have been viewed as acts or conducts of an illiterate village woman. Be that as it may, in view of the findings of the trial court, I assume that she has refused to come back to her husband's house in November/December, 1971, I also hold that the remarriage in question was performed in March, 1972, that is, within three months from December, 1971.
8. Now, the crucial question is as to whether a Hindu wife with a child having left her husband's house and not returning back to her husband or as a matter of that refusing to come back is entitled to any maintenance Under Section 488 of the Cr. P. C. In the event of her husband's second marriage.
9. In order to appreciate the position it is worth-while to refer the relevant provisions contained in Section 488 of the Cr. P. C, :--
488. * * *
If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be Just ground for his wife's refusal to live with him :
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(4) 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.
10. In the instant case, the question that crops up for consideration is as to whether the wife having refused to live with her husband earlier, that is to say, in the month of November or December, 1971, disentitled herself to get maintenance under the law on and from 11-8-73, as awarded by the learned Magistrate, in view of the second marriage of her husband contracted in the month of March, 1972. It is indubitable that the husband has sufficient means to maintain the wife and the legitimate child and they were unable to maintain themselves.
11. The crucial question that falls for consideration is as to whether a Hindu wife living apart from her husband without reasonable cause, but neither living in adultery nor living separately by mutual consent, Is entitled to receive an allowance Under Section 488 of the Code even if her husband has contracted marriage with another wife or keeps a mistress.
12. The object of Section 488 of the Cr. P. C, is to provide a summary remedy for maintenance to prevent vagrancy. Chapter XXXVI of the Code providing for maintenance of wives and children intends to serve a social purpose. It is an independent right of the wives and children to have urgent relief. The right is neither alternative nor in conflict with other remedies available to persons under the personal laws of the parties. At any rate the right of the applicant under the Hindu Adoptions and Maintenance Act, 1956 does not affect her right of maintenance Under Section 488 of the Code as there is no inconsistency between the Act of 1956 and the provisions of Section 488. Section 4(b) of the Act of 1956 does not repeal or in any way affect the right of the applicant Under Section 488 of the Code.
13. In the instant case the applicant did not apply to get any maintenance for the period she was living apart from her husband supposedly without any sufficient reason. Her case is that her husband has since contracted a second marriage and the act by itself gives her a right to claim maintenance under the section on and from the date of the said marriage notwithstanding her earlier act of living apart from her husband. Her case is that it has given rise to a fresh and new cause of action, Her husband could not compel her to live with him as the said act of second marriage has by itself given her a right to refuse to live with her husband. Her husband had no right to compel her to live with him and to enforce him marital right to that extent. But he had the obligation to maintain her as she was unable to maintain herself, This is his statutory obligation Under Section 488 of the Code and also Under Section 18(2)(d) and (e) of the Hindu Adoptions and Maintenance Act, 1956, which reads as under :--
18(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance :--
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(d) if he has any other wife living :
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere ;
14. As such the applicant had a right under the Hindu Adoptions and Maintenance Act, 1956 and also Under Section 488 of the Cr. P. C. to claim maintenance and she has chosen to enforce her right under this Act. The fact as to whether the second marriage was valid or void or voidable matters little and does not affect her right Under Section 488 as it speaks about contracting a marriage valid or otherwise, If the marriage is void the act in question will tantamount to keeping a mistress. In any view of the matter the husband has contracted a second marriage, has failed and neglected to maintain the applicant and had sufficient means and as such was liable Under Section 488 of the Code. Under these circumstances, I hold that the applicant is entitled to claim and get her maintenance after the second marriage,
15. The learned Sessions Judge has held that the second marriage might have been due to the act of refusal of the applicant to live with her husband and as, such she could not claim any maintenance. In the instant case the applicant has left In November-December, 1971 and the second marriage was contracted In tide month of March, 1972, The span of absence is so short that no force or compulsion for the second marriage can even be inferred. Apart from this the claim of the applicant is neither contractual nor tortious. It is her statutory right and
contributory negligence cannot be a relevant consideration to throw the applicant's case out of Court. I hold that there was no proved compelling circumstance for the second marriage or the same can be a relevant consideration to deprive the applicant to enforce her statutory right Under Section 488 of the Code.
16. Apart from that what the husband did was a penal act violative of Section 494 I. P. C., an offence relating to marriage, marrying again during the life of the wife, Sections 5 and 11 of the Hindu Marriage Act, 1955 read as follows :--
5. Conditions for a Hindu marriage : A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :--
(i) neither party has a spouse living at the time of the marriage ;
(ii) neither party is an idiot or a lunatic at the time of the marriage ;
(iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage ;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two ;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two ;
(vi) where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage.
11. Void Marriage :-- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5.
17. Therefore, the second marriage was a void and illegal marriage Under Section 5 read with Section 11 of the Hindu Marriage Act. At any rate the husband took a woman and her status was not that of a legally married wife but that of a 'mistress', Dictionary meaning of the term 'mistress' includes a paramour, concubine, inamorata, kept woman'. As such in my opinion the husband is not entitled to take up the plea that the illegal act committed by him was forced upon by his wife and thereby defeat a legitimate statutory right of & wife Under Section 488 Cr. P. C.
18. In the instant case the applicant has not laid any claim for her maintenance upto and including the month of March, 1972-- the month of the second marriage. She has claimed her maintenance for the subsequent period and has been awarded maintenance by the trial court on and from 11-8-1973.
19. In view of the foregoing discussion, I hold that the order of the trial court is legal and valid and merits no interference at all.
20. The learned Sessions Judge considered the decision reported in AIR 1953 Nag 133 : 1953 Cri LJ 750, (State v. Anwarbi) and has rightly held that the decision is not at all applicable. The next case referred is reported in : AIR1960MP245 . (State of M. P. v. Deoboti), The High Court's conclusion & the same as I have already arrived at but the reasonings are different. I respectfully agree with the conclusion arrived but do not agree with all the reasonings. The next case referred to is reported in : AIR1956Cal134 (Bela Rani v. Bhupal Chandra). Instead of repeating the ratio of the decision I prefer to quote the statement of J. P. Mitter J. (as he then was) :--
In our view, it is not permissible to read into the explanation anything more than what it says in the context of proviso I to Sub-section (3). In our view, it would not be permissible to pray in aid the provisions of the Hindu Marriage Women's Right to Separate Residence and Maintenance Act for the purpose of construing Sub-section (1) of Section 488, Cr. P. C.............. Whatever might be the personal law of any wife, she must, in order to entitle her to an order under Sub-section (1) of Section 488, Cr. P. C., establish, inter alia, that there is a present neglect or refusal on the part of her husband to maintain her. The mere fact of a second marriage cannot ipso facto establish 'such neglect or refusal' within the meaning of Sub-section (1) of Section 488, Cr. P. C. for, a man may marry a second time and still not refuse to maintain his first wife.
21. I respectfully agree with the view that unless the essential ingredients of Section 488(1) of the Code are established, namely, (1) sufficient means of the husband, (2) neglect or refusal by him and (3) inability of the wife to maintain herself, a wife cannot sustain a claim for an order of maintenance merely on the ground of husband's second marriage calling in aid the provisions of the Hindu Women's Right to Separate Residence and Maintenance Act, 1946 (since repealed and re-enacted as the Hindu Adoptions and Maintenance Act, 1956) Second marriage of a husband may not 'Ipso facto' establish' such neglect or refusal' as contemplated Under Section 488(1) of the Code. Even after the second marriage a husband may provide for maintenance of his wife or the wife may have sufficient means to maintain herself. Under these circumstances wife cannot claim any right Under Section 488 of the Code. She is not entitled to lay her claim Under Section 488 of the Code in respect of her claim under the Hindu Adoptions and Maintenance Act, 1956, for which separate forum and procedure have been laid down, In Nanak Chand v. Chandra Kishore reported in : 1970CriLJ522 the Supreme Court has Md down that there is no inconsistency between the Hindu Adoptions and Maintenance Act, 1956 and Section 488 of the Code ; both can stand together and the two Laws are different ; Section 488 Cr. P. C. provides for a summary remedy available to persons of all religion and has no relation with the personal law of the parties and the provisions of Section 4(b) of the Act of 1956 does not affect the provisions contained in Section 488, Cr. P. C. Under the circumstances, I respectfully agree with the view expressed in Bela Ranee's case 1956 Cri LJ 526(Cal) (supra) but hold that the ratio of the decision is not applicable in the present case in view of the fact that the wife, in the instant case, apart from establishing the second marriage has established all the ingredients of Section 488(1) of the Code.
22. The next case referred to in the letter of reference is Ramji Malviya v. Smt. Munni Devi Malviya reported in : AIR1959All767 . The learned Sessions Judge while referring to this decision has completely misunderstood the principles of law and has pick ed up stray observation to hold that the decision enunciated a principle that the husband gets a licence to remarry in the event of his wife living apart from him, The said decision arose out of an, application filed by the husband, who was ordered to pay maintenance to his wife Under Section 488 of the Code, In the said decision, the claim of the wife was not based on the husband's refusal to maintain her but sprang from the mere fact of the husband marrying again. The learned Judge observed that a wife cannot have a right to claim maintenance from her husband without establishing a prima facie case that her husband having sufficient means had neglected or refused to maintain her.
In the said case, the above ingredient was found to be absent. Apart from that the learned Judge held that it was not a case of a temporary separation but a case of desertion out end out. A casual observation has been made by the learned Judge that ordinarily remarriage is a sufficient ground for wife (to refuse) to live with her husband but if the second marriage of the husband, was forced upon (him) by the act and conduct of the wife, she should not get maintenance Under Section 488 of the Code, In the said case, on the facts and circumstances of the case, the learned Judge considered that act and conduct and thought it fit that it was not a case covered by Section 488 of the Code, It was a case of long desertion for about 5 years. Having taken into consideration the factum of desertion, the learned Judge held that the wife was not entitled to get a maintenance, Therefore, the facts are different and real issue was not what is involved in the instant case. With all respect, I hold that the observation of the learned Judge that a husband is entitled to marry for the second time tinder the circumstances set forth in the decision, does not appear to me to be a correct proposition of law in view of the changes in law. I have already held that the act of the remarriage of a Hindu husband is an offence and is a void marriage under the Hindu Marriage Act and a husband cannot take up a plea that he was forced to remarry and deprive the wife of her right to get maintenance ; Further, no question of contributory negligence may be taken into consideration in the matter of awarding maintenance, the object of which is to prevent vagrancy. But, however, in the instant case I am not dealing with a case of desertion, It is a case of temporary se paratfon of an illiterate young wife. On facts as well, I hold that in the instant case there was not desertion. I further hold that in Ramji Malviya (supra) the second marriage was solemnised before the Hindu Marriage Act, 1955 came into force and as such, the learned Judge had not had the opportunity of considering that aspect of the case, as I have done in the instant case. In that view of the matter, I most respectfully differ from the said observation in Ramji Malviya (supra) and hold that the said view can no longer be a good law after the Hindu Marriage Act 1955, came into force.
23. In the result, the Reference is rejected and I direct that the record should be sent down forthwith and prompt and adequate steps should be taken by the learned Magistrate to ensure payment to the wife at the earliest possible opportunity and to give top priority to this case (to ensure immediate payment of her maintenance, The learned Magistrate should be very much particular about the enforcement of this part of the order and he is directed to Inform the Registrar of this High Court about the compliance of the order.
24. I feel that it Is my duty to express my dissatisfaction and regret regarding the whole affair of reference including the order of the learned Sessions judge in keeping the payment of main tence In abeyance. The learned Judge by making the stay order has deprived a deserving person the fruit of her litigation arising out of a rightful claim. It is really sad reflection on the Judiciary that a helpless young wife was deprived of her right to get maintenance on and from 11-8-1973 till the present date, that is, for 5 long years by a stroke of pen of a Judicial Officer, who had not cared or did not care to perceive the consequences of the stay order, While making any such stay order, the Court below should take into consideration the affect of such stay on the litigants.
25. In line, I express my deep appreciation to Shri Jitendra Nath Sarma, the learned Counsel, who appeared as an 'amicus curiae' in the instant case has assisted the Court to peek the case from all possible angle.