1. This revision petition arises out of the reference made by the Chief City Magistrate cum-Additional Sessions Judge and District Magistrate (Judicial) Hyderabad in Crl. Revision Petition No. 120/67, recommending the quashing of an order of the Mimsif Magistrate, Tandur dated June 26, 1967 in M. C. No. 1/ 68 awarding maintenance to the respondent at the rate of Rs. 25 per mensem, under Section 488(1) of the Code of Criminal Procedure.
2. The ground on which maintenance under Section 488(1) Criminal P. C. was claimed by the respondent Annapurnamma, the legally wedded wife of Shankaraiah, the petitioner, was that the husband had married again and that she was being ill-treated and beaten and ultimately driven out of the house along with her children by him at the instigation of his second wife.
3. The respondent's claim was resisted by the husband on the ground that there was no neglect or refusal to maintain her and her children, nor was there any ill-treatment, but she had developed illicit intimacy with one forest chowkidar by name Mohd. Jahangir and had deserted him and hence she is not entitled for maintenance.
4. The trial Magistrate awarded maintenance at the rate of Rs. 25 per month on the ground that the petitioner had attributed unchastity which was not proved. The referring Judge pointed out that the imputation of unchastity does not amount to legal cruelty justifying the granting of maintenance, as it does not amount to neglect or refusal to maintain her, and recommended for quashing the order of the trial Magistrate.
5. Sri C. P. Sarathi, appearing for the husband, contended that the order of the trial Magistrate is illegal and erroneous and is liable to be set aside, accepting the reference made by the Court below. Sri Balakrishna Murthy, appearing for the wife, urged that his client is entitled to have maintenance under Section 488, Criminal P. C. on the sole ground that there was a second marriage and the imputation of unchastity would amount to legal cruelty justifying the granting of maintenance to the wife and hence, the trial Court's order is correct.
6. The point that arises for determination is whether the respondent, the legally wedded wife of the petitioner, is entitled to claim maintenance under Section 488(1), Criminal P. C. on the ground of false imputation of unchastity in the written statement or on the ground that her husband had married again.
7. It is necessary and proper to examine the provisions of Section 488(1), Criminal P. C. which read thus:
If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to mantain itself, the District Magistrate, 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 or such child, 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.
To attract the provisions of Section 488(1), Criminal P. C., it is incumbent on the wife, who claims maintenance, to establish that her husband has sufficient means but neglected or refused to maintain her. Unless and until it is established that the husband having sufficient means either neglected or refused to maintain his wife, he cannot be compelled by the Magistrate under Section 488(1), Criminal P. C. to make a monthly allowance for the maintenance of his wife.
8. The amendment to Sub-section (3) of Section 488 provides that the contraction of a marriage by the husband with another wife or keeping a mistress is a just ground for his wife's refusal to live with him. There is a controversy between several High Courts as to whether the amendment to Sub-section (3) referred to above is applicable to the cases relating to enforcemerit under Sub-section (3) or applicable to the main section itself.
9. The Mysore High Court in Syed Ahmad v. M. P. Taj Begum AIR 1958 Mys 128 and Shambu v. Ghalamma AIR 1966 Mys 311, the Bombay High Court in Tejabai v. Shankarrao AIR 1966 Bom 48 and the Saurashtra High Court in Govindram v. Ratanbai Nathuram AIR 1956 Sau 105, have taken the view that the proviso and the amendment to Sub-section (3) are applicable to the entire section and the same cannot be confined to Sub-section (3) alone, whereas the High Court of Andhra Pradesh in Iqbalunnisa Begum v. Habib Pasha AIR 1961 Andh Pra 445, the Calcutta High Court in Sm. Bela Rani v. Bhupal Chandra AIR 1956 Cal 134 and in Rupchand v. Charubala AIR 1966 Cal 83 and the Madras High Court in Kandaswami Gounder v. Nachammal AIR 1963 Mad 263, have taken the contrary view. On a reading of the proviso to Sub-section (3), I am inclined to agree with the view taken by the Mysore High Court in AIR 1958 Mys 128 and AIR 1966 Mys 311 and the Bombay High Court in AIR 1966 Bom 48, which gains support from the use of the expression 'an order under this section' in Sub-section (3) instead of 'an order under this Sub-section' and on reading of subsection (4). But I need not rest the decision in the present case on that ground which would require me to refer the case to a Division Bench as my learned brother Anantanarayana Ayyar, J., in AIR 1961 Andh Pra 445 had already expressed the view that the proviso is applicable only to cases of enforcement and must be confined to Sub-section (3) but not to the entire section, although I feel that this view requires reconsideration in a proper case, when the question arises directly for consideration.
10. The next ground on which I prefer to rest my conclusion in the present case is whether neglect or refusal as contemplated by Section 488(1), Cr.P.C, has, in fact, been established either expressly or by implied conduct of the party.
11. In Subhagi Devi v. Murli Pradhan AIR 1968 Pat 139, it was held that unless the petitioner who claims maintenance under Section 488(1) proves that her husband, having possessed of sufficient means, neglected or refused to maintain her, she will not be entitled for the awarding of maintenance and the Magistrate will have no jurisdiction to pass an order. The same view has been taken by the Allahabad High Court in Ramji Malviya v. Smt. Munni Devi Malviya AIR 1959 All 767 and Prabhawati Devi v. Radhey Shyam AIR 1965 All 598, the Punjab High Court in Mst. Dhan Kaur v. Niranjan Singh AIR 1960 Punj 595, the Nagpur High Court in State v. Anwarbi AIR 1953 Nag 133, the Calcutta High Court in AIR 1966 Cal 83, the Lahore High Court in Sita Devi v. Har Narain AIR 1930 Lah 886 and the Madras High Court in Pullamma v. Thatalingam AIR 1945 Mad 44. It is true that the Magistrate is not competent to award maintenance under Section 488, Cr.P.C, unless the essential ingredients of neglect or refusal by the husband to maintain his wife are established in addition to the fact that he has sufficient means to maintain her, Without entering into the major controversy relating to the effect of the amendment to Sub-section (3) of Section 488, Cr.P.C, it can be taken as one of the guidelines for construing the main Section 488, Cr.P.C. The Court is competent to arrive at a conclusion as to whether there was or no neglect or refusal in each case on the part of the husband to maintain his wife and in doing so, it can certainly take the second marriage of the husband, as one of the factors into consideration along with the other material on record.
12. Under Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, which came into force on April 23, 1946, the first wife is entitled to live separately and claim separate maintenance, when her husband takes a second wife. This statutory right would entitle her to reside separately and she is at liberty to choose to live separately and claim maintenance from her husband. It is the duty of the husband to maintain her separately, when she chooses to do so, pursuant to the statutory right given to her by the Legislature. The provisions of Section 5(1) of the Hindu Marriage Act, 1955, make it obligatory that no Hindu shall have his or her spouse living at the time of marriage and the contravention of such a condition would invalidate the marriage as void. The progressive legislation made by the Indian Parliament with the object of making monogamy as a rule of law to eradicate the social evil and injustice, should be taken into consideration in construing the provisions of Section 488(1), Cr.P.C. The personal law of the Hindus entitled a Hindu woman for a separate residence and maintenance, when her husband takes a second wife during her lifetime and such marriage would be null and void. Where a Hindu woman is entitled by virtue of the statute to live separately and claim maintenance, it is the duty of the husband to maintain her accordingly, and any failure or omission on his part to provide adequate maintenance and separate residence for such a wife would, in my considered opinion, amount to refusal or neglect on the part of the husband to maintain his wife, within the meaning of Section 488(1), Cr.P.C.
13. In Senapathi v. Deivanai Ammal AIR 1950 Mad 357, while considering the claim of a wife for separate maintenance on the sole ground that her husband had married again, the learned Judge, Panchapakesa, J., observed:
The petitioner has married again and his offer to take the respondent back and treat her well cannot be taken to be sincere. Even if he takes her back, he will only make her an unpaid cook and maid for all work of himself and his second wife, an intolerable position and one to which no Court should drive a married woman.
14. In Bayanna v. Devamma (1953) 2 Mad LJ 522 : AIR 1954 Mad 226, the learned Judge, Govinda Menon, J., while considering a claim of the wife for maintenance under Section 488(1), Cr.P.C, on the sole ground that her husband had married again and that she preferred to reside separately in her parents' place, observed:.under Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act, when the husband takes a second wife, the first wife is entitled under the law to live separately and claim separate maintenance. So her residing separately is legal and once she resided separately, the duty of the husband is to give her separate maintenance.
15. The same view has been followed by the Madras High Court in Kandaswami Gounder v. Nachammal AIR 1963 Mad 263 and Pichi Konar v. Chellayee (1965) 2 Mad LJ 33. In AIR 1966 Bom 48, a Division Bench of the Bombay High Court has held that a wife living separately from her husband was entitled to claim maintenance under Section 488, Cr.P.C, on the sole ground that the husband had contracted marriage with another wife.
16. In Ranjit Kaur v. Avtar Singh AIR 1960 Punj 221, relyintj upon the decision of the Saurashtra High Court in AIR 1956 Sau 105, the Punjab High Court held that where the husband had taken a second wife and he refused to maintain her unless she was agreeable to live with him, it would be sufficient to infer refusal of the husband entitling the wife for maintenance under Section 488, Cr.P.C.
17. In AIR 1958 Mys 128, while considering the claim of the wife under similar circumstances it was observed at page 131 thus:
Neglect or no neglect, the petitioner in this Court is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. His plea that he has been compelled to take a second wife by the conduct of the first wife and her parents, is not a plea that is open to him in law. His grievance may be gennine but law does not recognise it as a good defence.
18. The same view has been followed by a Division Bench of the Mysore High Court in AIR 1966 Mys 311 after reviewing the entire case-law on the subject. In that case, the decision of the Andhra Pradesh High Court in AIR 1961 Andh Pra 445 has been considered and dissented. The decision of my learned brother Anantanarayana Ayyar, J., in AIR 1961 Andh Pra 445 is distinguishable on the ground that the parties in that case being Muslims, the wife, who claimed maintenance under Section 488, Cr.P.C, was not entitled for separate residence and maintenance by virtue of the provisions of Section 2 of the Hindu Married Women's Rights to Separate Residence and Maintenance Act, which is applicable only to the case of Hindu women. In the present case, the respondent, being admittedly a Hindu woman, is entitled to live separately and claim maintenance on the ground that the petitioner had married again. The mere request or offer,of the husband to maintain her will not be sufficient as she is at liberty to either agree or refuse to accept the offer made by the husband. In view of my conclusion, on the second aspect, I feel it unnecessary to deal with the question whether a married woman is entitled to claim maintenance under Section 488(1), Cr.P.C, on the ground of false imputation of unchastity in the written statement or on the ground that her husband had married again.
19. In the circumstances and for the reasons indicated above, I must hold that the awarding of maintenance under Section 488(1), Cr.P.C, by the trial Magistrate to the respondent herein is just, proper and valid and it does not require to be set aside. Hence, the reference is rejected.