1. The applicant Sitaram was directed to pay Rs. 5. per mensem as maintenance to the non. applicant Demai by the First Class Magistrate, Nagpur, under Section 188, Criminal P. C, and his application for revision of that order was dismissed by the Sessions Judge, Nagpur, on 7th August 1946. In view of his failure to comply with the order, a warrant was issued against him under Sub-section (3) of that section and in the subsequent proceedings he appeared and claimed that she had no right to maintenance because of the fact that she was divorced on 4th August 1946 at a panchayat which was not attended by her.
2. The First Class Magistrate, Nagpur held that the divorce was not recognised by Hindu law and he noted that it had taken place during the pendency of the revision from the order fixing Dernai's maintenance at Ea. 6 per mensem. His view was upheld by the Sessions Judge, Nagpur, who dismissed Sitaram's application; and Sitaram has now come up in revision to this Court.
3. The applicant is a Gowari and it is specifically stated at p. 162 of Russell's 'The Tribes and Castes of the Central Provinces of India,' Vol. Ill, that in this caste divorce and the re-marriage of widows are permitted. This position was apparently envisaged by the learned Sessions Judge, Nagpur, who was of the view that even if a divorce was permissible by custom, it was not valid in this case for the reason that it was unilateral and against the wishes of the applicant's wife Mat. Demai. The applicant's learned Counsel referred me to Gupta's Hindu Law in British India, 1945, at p. 920 of which there is a comment to the effect that Sir Thomas Strange says that the right of divorce in the Hindu law is 'marital' (of a husband) only; but the commentator in the very next sentence refers to an authority who differs from Sir Thomas Strange on this question. On the next page, there is a reference to a Bombay case in which it was held that a custom of caste by which the marriage tie can be dissolved by either husband or wife against the wish of the divorced party, the sole condition attached being the payment of a sum of money fixed by the caste, cannot be recognized by the Courts.
4. That case, Keskav v. Bai Gandi : AIR1915Bom107 was cited with approval by Mayne at p. 72 of his Treatise on Hindu Law and Usage, 10th Edn. 1988, and by Mulla at p. 512 of his Principles of Hindu Law, 9th Edn., 3940. In Thangammal v.Qengayammal : AIR1945Mad308 it was held that there is no invalidity in a custom by which a married couple being unable to live together, by consent seek divorce and are divorced by the parties approaching the headman and other relations, paying a certain amount and taking away the sacred thread from round the wife's neck and giving it back to the husband; but that the custom permitting a divorce may be illegal if the divorce is enforced against the wish of the wife.
5. The applicant's learned Counsel referred me to the case of Sankaralingam Chetti v. Subban Chetti, 17 Mad. 479 but that is not actually in his favour, as the Division Bench there held that there is nothing immoral in a custom by which divorce and remarriage are permissible by mutual agreement, on one party paying the other the expenses of the latter's original marriage. That was clearly a case of mutual agreement and in the present application I am concerned with a divorce which was unilateral. The position thus is that even if the divorce pleaded by the applicant Sitaram did in fact take place, it was not a valid divorce and he was be und to comply with the order of maintenance passed against him. Consequentially, the learned Magistrate was entitled to issue a warrant against him under Section 488 (3), Criminal P. C. This application is dismissed.