1. This reference has been made by the District Magistrate of Lucknow to set aside an order passed by a Special Magistrate of the first class of Lucknow granting Mt. Zubeda Khatoon maintenance under Section 488, Cr. P. C., against her husband.
2. The facts as they may be taken to be established at this stage are that Mt. Zubaida Khatoon, who is the lawfully married wife of the opposite party voluntarily left her husband's house & took up her residence with her father. The husband filed a suit for restitution of conjugal rights & obtained a decree on 26-1-1946. The decree, however, was made conditional upon the husband paying Rs. 130 to the wife. This payment was made into Court but the wife did not obey the order contained in the decree for restitution & thereupon the husband applied that the money should be attached & not paid over to the wife until she obeyed the orders of the Court.
3. In the meanwhile, the wife instituted suits for recovery of her dower debt & the do wry which had been given to her by her parents & was at her husband's house. These suits were resisted by the husband but they were eventually decreed. The explanation given by the husband was that he resisted the suit for the dower debt because the prompt dower had already been ordered to be paid and he was not liable to pay the balance of the dower until his wife came to his house and took up her residence there. With regard to the dowry, he stated that he did not hand over this dowry because he expected his wife to come and live with him.
4. The allegation made in the application under Section 488, Cri. P. C., was that the husband had neglected to maintain his wife ever since she came to take up her residence in her father's house & that she was not prepared to go back to her husband's house in spite of the decree for restitution because she apprehended that he might compel her to sign some documents withdrawing her two cases.
5. The learned Magistrate who passed the order was much influenced by the fact that this was a possibility and that the husband had stated that the filing of the two suits by the wife had annoyed him. He also held that the defence to the two suits by the husband was harassment of the wife and justified her in refusing to go & live with him.
6. The learned Magistrate does not seem to have considered that he was being asked for assistance to compel payment to be made to a person who had deliberately refused to obey the orders of the civil Court to go & live with her husband. Section 488, Cr. P. C., is not meant to be utilised for this purpose. It is no doubt true that the Magistrate has discretion but that discretion must be exercised upon judicial principles and it is not in accordance with sound judicial principles to compel a husband to maintain a wife who contumaciously refuses to obey the order of a civil Court directing her to live with her husband. It is the duty of the criminal Court to support the decision of the civil Court in such matters & the civil Court having found that the wife left the protection of her husband upon no justifiable grounds, & that there was no cruelty as alleged by the wife, the criminal Court could not inquire into any allegations of neglect or failure during the period daring which the civil litigation was pending.
7. As to the subsequent period the only allegation made was that the wife had chosen to file two suits and there was apprehension in her mind that she might be got to withdraw those suits if she went to live with her husband. This was not sufficient ground for her to refuse to live with her husband because, while she might be entitled to the rights which she claimed under the two suits, her husband was also entitled to have a privilege of her company & she was bound to go & live with him. If the wife chooses for purposes of some advantage to herself not to live with her husband, she cannot say that it is the husband who has refused to maintain her & has neglected her. In the present case, therefore, there was no occasion for the application of Section 488, Cri. P. C.
8. In Rajpati v. Deoli, 46 ALL. 877 it was held that a decree for restitution of conjugal rights could not prevent proceedings under Section 488, Cri. P. C., if it was shown that, subsequently to the passing of the decree, the husband had ill-treated his wife who had gone to live with him in pursuance of that decree. In the present case, that situation has not arisen because the wife has not in fact gone to live with her husband.
9. In Tarak Nath Dhar v. Sneharani Dhar A. I. R. (36) 1949 Cal. 87 it has been laid down that a decision in a suit against the wife for restitution of conjugal rights is equivalent to a decision by a competent civil Court that the wife had no sufficient reason for refusing to live with her husband. In accordance with this decision it must be held that on 26 1-1946 when the decree for restitution was passed, the wife had no sufficient reason for refusing to live with her husband. The only thing that happened between that date & 10-10-1946 is that the wife filed two suits against the husband for recovery of dower & dowry & that those suits were defended by the husband. As I have already stated, the filing of these two suits by the wife was not sufficient justification for not obeying the orders of the civil Court ordering restitution. Thus nothing has happened in this case subsequent to the filing of the decree which would justify the wife in refusing to obey that decree.
10. The reference must, therefore, be accepted and the order of the Magistrate dated 9-6.1947. directing Mohammad Siddiq to pay a maintenance allowance of Rs. 10 p. m. to his wife is set aside.