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Rahmath Saheb Vs. Zainabi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1973CriLJ879
AppellantRahmath Saheb
RespondentZainabi
Excerpt:
- - 8. it is clear from the provisions of the above sub-section that one of the grounds on which a wife's claim for maintenance allowance under section 488 of the code could be defeated is if a wife refuses without sufficient reason to live with her husband. 9. in the instant case, sri shetty has drawn attention to certain portions of the evidence which clearly and un-equivocally point to the real motive of the wife in refusing to stay with her husband. it is obvious from them that the only reason for the wife's refusal is the husband's failure to return the sold and non-payment of money by wav of maintenance. the award of maintenance allowance, therefore, is clearly hit by the prohibition enacted under section 488(4) of the code and, therefore, clearly one made without jurisdiction......purposes of section 488(8) of the code and contended that the husband's stay for a few days at the wife's place before leaving for bombay was of a casual nature and would not bespeak of the necessary 'animus manned' which is necessary to vest jurisdiction in the court at. mangalore to try the case. for this proposition he relied on an enunciation of the supreme court in mst. jagir kaur v. jaswant singh : [1964]2scr73 .5. it is no doubt true that the enunciation relied on supports the view that the word 'resides' in the sub-section (8) of section 488 of the cods would mean something more than, a feline visit to or a casual stay in a particular place and there shall be 'animus manendi' or an intention to stay for a period, the length of the period depending upon the circumstances of each.....
Judgment:
ORDER

B. Venkataswami, J.

1. This petition under Section 439, Cr.P.C. ('Code') is by the husband challenging the order for maintenance made under Section 488 of the Code, whereby an allowance of Rs. 30/- per mensem has been directed to be paid to the wife from the date of the petition.

2. The facts need not be set out at length in view of the Questions raised on behalf of the petitioner. The learned Magistrate found that the respondent had been in fact deserted by her husband within the meaning of the provisions of Section 488 of the Code and the husband's offer to maintain her was not bona fide. He further found that the wife's refusal to reside with her husband was justified.

3. On behalf of the petitioner. Sri M. Gopalakrishna Shetty, the learned Advocate urged the 'following as his principal contentions:

1. That the Court at Mangalore had no jurisdiction to try the case.

2. That on the facts of the case, the case fell within the prohibition enacted in Sub-section (4) of Section 488 of the Code.

On giving my careful consideration to the matter. I am of the view that the first of the above contentions cannot be acceded to and the other deserves to be accepted as correct.

4. In elaboration of the first contention, Sri Shetty drew attention to the circumstances in the evidence bearing on the question of residence of the husband for the purposes of Section 488(8) of the Code and contended that the husband's stay for a few days at the wife's place before leaving for Bombay was of a casual nature and would not bespeak of the necessary 'animus manned' which is necessary to vest jurisdiction in the Court at. Mangalore to try the case. For this proposition he relied on an enunciation of the Supreme Court in Mst. Jagir Kaur v. Jaswant Singh : [1964]2SCR73 .

5. It is no doubt true that the enunciation relied on supports the view that the word 'resides' in the Sub-section (8) of Section 488 of the Cods would mean something more than, a feline visit to or a casual stay in a particular place and there shall be 'animus manendi' or an intention to stay for a period, the length of the period depending upon the circumstances of each case. In this view even a temporary residence would fall within its ambit in certain circumstances. But the further enunciation of the Supreme Court in the decision cited would reveal that the words in Section 488(8) of the Code should receive a liberal construction. Section 488 is intended ordinarily to assist helpless persons and the proceedings in their very nature are civil and summary in character. The relevant enunciation reads thus:

The third expression is the word 'is.1 It is inserted between the words 'resides' and 'last resided'. The word, therefore, cannot be paved the same meaning as the word 'resides' or the expression 'Last resided' bears. The verb 'is' connotes in the context the presence or the existence of the neurons in the district when the proceedings are taken. It is much wider than the word 'resides': it is not limited by the 'animus manendi' of the person or the duration or the nature of his stay. What matters is his physical presence at a particular point of time. This meaning accords with the object of the chapter wherein the concerned section appears. It is intended to reach a person who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country. but returns to that district or a neighboring one on a casual or a feline vigil. The wife can take advantage of his visit, and file a petition in the district where he is during his stay. So too, if the husband who deserts his wife, has no permanent residence, but is always on the move, the wife can catch him at a convenient place and flip a petition under Section 488. She may accidentally meet his in a place where he happens to come by coincidence and take action against him before he leaves the said place. This is a salutary provision intended to provide for such abnormal cases.

Thus proceedings under the section can be. taken against the husband or the father, as the case may be in a place where he resides, permanently or temporarily, or where he last resided in any district in India or where he happens to be at the time the proceedings are initiated.

6. Viewed in the light of the above, enunciation, the facts of the instant case would disclose that the petitioner and her husband lived for sometime at the place of the petitioner's father-in-law, before he left for Bombay. It is also possible to infer from this that the petitioner intended to leave the respondent at her father's place and thereby indicating that her residence at Karsala shall be discontinued. It is also in evidence that the petitioner-husband lived at Biped in his father-in-law's residence for nearly 20 days, taking a view most favorable to the wife. Thereafter he left for Bombay. In these circumstances I am of the view that such residence is sufficient, to invest the Court at Mancalore with jurisdiction. I see, therefore, no reason to interfere with the conclusion of the Court below on this question.

7. The next contention depends on the interpretation of the provision of Sub-section (4) of Section 488. That subsection reads as follows:

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.

8. It is clear from the provisions of the above sub-section that one of the grounds on which a wife's claim for maintenance allowance under Section 488 of the Code could be defeated is if a wife refuses without sufficient reason to live with her husband. It seems to me that sufficiency of reason contemplated therein is a question of fact. But that is not to say that any and every reason or pretext put forth on behalf of a wife should be accepted in satisfaction of such a requirement. The cause shown must be reasonable and must have some relation to the health and safety of the wife. The section does not contemplate any reason by wav of inconvenience, hardship or such other, which is purely based on economic or financial grounds. The section further merely enacts an exception to the rule governing, grant of maintenance under the main Clause of Section 488 and does not expressly give any indication as to where the burden law to establish, or to disestablish, such a fact. But going by the general principles of law, and especially when the said provision is viewed as an exception, to my mind the burden of establishing it lies on the husband who has been found by the Court to have deserted the wife as a matter of fact. But such proof may consist of admissions to be cleaned from the evidence adduced on behalf of the wife in support of her claim for maintenance allowance.

9. In the instant case, Sri Shetty has drawn attention to certain portions of the evidence which clearly and un-equivocally point to the real motive of the wife in refusing to stay with her husband. The petitioner wife, who has been examined as P.W. 1 in the case, has deposed in cross-examination thus:

I am prepared to so with the respondent (husband) if he gives me back my 6 sovereigns of sold and money. By money I mean the maintenance dup to me. I have no other objection to and live with him.

Again, her father, who has been examined as P.W. 3. has deposed in cross-examination thus:

I am not prepared to send my daughter with the respondent now even if he is prepared to take her with him. When he came down from Bombay he wanted to send the petitioner (wife) to the respondent's house. As the respondent has not paid advising for her maintenance how could the petitioner be sent....

10. The above two statements need no elaborate comment to establish the fact that the wife has without sufficient reason, refused to live with her husband within the meaning of the provisions of Sub-section (81 of Section 488 of the Code. It is obvious from them that the only reason for the wife's refusal is the husband's failure to return the sold and non-payment of money by wav of maintenance. The award of maintenance allowance, therefore, is clearly hit by the prohibition enacted under Section 488(4) of the Code and, therefore, clearly one made without jurisdiction. It cannot therefore be sustained.

11. For the above reasons, I allow the petition and consequently set aside the order ripened herein. In the result, the petition for maintenance stands dismissed.


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