1. This is an application for revision of an order of a Magistrate of first class rejecting the petition of Mt. Kaluiya, which was made under Section 488, Criminal P.C. The date of the application is 2nd April 1929. It was directed against Hira, the husband of Mt. Kaluiya.
2. The parties are Koris by caste. The marriage between the parties took place about ten years ago and a girl was born about three years ago as the fruit of this marriage.
3. No aspersion has been cast upon the character of Mt. Kaluiya. She has been a faithful wife and 'has kept unsullied the bed of her lord.' It has also not been alleged or proved that she has been guilty of such minor offences in the performance of her household duties which were in any way calculated to cause annoyance to or impair the comfort of her husband.
4. The husband, however, appears to have conceived an intense dislike for his wife. He has practically put her away and has brought into his keeping a chamar woman whom he has introduced into the household.
5. There is evidence on the record that the husband habitually ill-treats his wife and in this matter he was seconded by his Chamar mistress. The fact of Hira keeping a Chamar mistress led to a panchayat being held about three years back and the panchayat outcasted Hira. Mt. Kaluiya, although the wife of Hira, may have conscientious scruples in either living or cohabiting with her outcaste husband. Time after time Hira has kicked and cuffed her. Time after time as the result of this ill treatment the unfortunate woman has been compelled to run away from her husband who should have been her natural protector and has gone to seek shelter in the house of her father. Panchayats were convened on several occasions. The decree of the panchayat was that the wife should go back to her husband and try to make up with him. In obedience to the fiat of the panchayat, the woman returned to her husband but each time she failed because each time she became the object of her husband's abuse and inhuman oppression. On the last occasion after the return of the wife he kept her without food for a day or two and then turned her out.
6. At the time of presenting this application in the Court of the Magistrate Mt. Kaluiya was living in the house of her father. She had signified that she was not willing to return to her old life. She had signified in the clearest terms that she was not prepared to go and live in the house of her husband. In the petition she had claimed Rs. 10 per month as her maintenance.
7. Hira, the husband, as was to be expected opposed the application. He stated that he was prepared to maintain his wife upon the condition of the wife living with him. The wife refused to go back to her husband's house to live with him.
8. Section 488, Criminal P.C., contains the following proviso in Clause (3) that:
if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer if he is satisfied that there is just ground for so doing.
9. My attention has also been drawn by Mr. M.M. Banerji who appears for Hira in this Court to Cl (4) which runs 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, of if they are living separately by mutual consent.
10. The vital question in this case is whether there was just ground on the part of Mt. Kaluiya for her refusal to go back to her husband to live with him.
11. The learned Magistrate deals with this matter in the following strain:
There are occasional out bursts of temper oven in well organised families and it is not a matter of surprise or of unusual importance that there should have been such a treatment of the wife by the husband who are koris and unfortunately not very civilized and still governed by the social rules in force among them.
12. The learned Magistrate continues:
the evidence of ill-treatment does not prove that the husband has been unusually hard on her, judging of course from the standard of mutual treatment, observed among the class to which they belong or that he has been constantly and habitually treating her with cruelty.
13. It has escaped the notice of the Magistrate that the words 'that he habitually treats his wife with cruelty' which occurred in the earlier Act have been omitted in the present Criminal Procedure Code and the words 'that there is just ground for so doing' have been substituted. The result of the amendment is that under the present Criminal Procedure Code the right of the woman who is living separately from her husband is not restricted to payment of maintenance to cases in which she has been treated by her husband with habitual cruelty. The words 'just ground' invest the Magistrate with larger discretion in the matter of giving or granting maintenance. Habitual cruelty may be a just ground but there may be other grounds apart from habitual cruelty. In the present case the evidence which was before the Magistrate, if properly read and properly appreciated, was capable of one and only one conclusion and that conclusion was that the Husband Hira had subjected his wife to a systematic course of ill-treatment and brutal oppression for a number of years. It was not that the husband had 'slapped' his wife with his open hand once or twice in the course of five years. Even this would have been reprehensible and could not have been justified but it might have been attributed to 'occasional outbursts of bad temper.'
14. The evidence shows that he used to abuse his wife. This by itself could not have been a very serious matter but the evidence further shows that time after time he kicked and cuffed her, turned her out of the house and on one occasion kept her without food for one or two days. If this evidence was not evidence of habitual ill-treatment and habitual cruelty, what was it
15. It is astounding that the Magistrate has advised the woman to go and live with her husband. He says:
There is no reasonable justification for the wife to refuse to go and live with him.
16. Is it reasonably certain that the husband will not ill-treat her again, if she returns? An appeal to the experience of the past presents a sad outlook for the wife and makes it more than probable that the return of the wife would give rise to a resumption of the ill-treatment.
17. The learned Magistrate was wrong in holding that the matter would be lightly brushed aside as being due to 'occasional outbursts of temper'
18. Then again is the husband to be allowed to be brutal towards his wife on the ground that he is a Kori by caste or on the ground that the husband is: 'unfortunately not very civilized and still governed by the social rules in force among them.'
19. The British Indian Legislature in enacting Section 488, Criminal P.C., makes no distinction between a blue blooded patrician of a very high caste and social standing and another person who is the lowest of the low in the social strata. The effect of the legislation is levelling and humanizing. If a person, belonging to the Kori caste, having sufficient means is not alive to the duties and responsibilities towards his wife and neglects or refuses to maintain his wife, he is amenable to the provisions of Section 488, Criminal P.C. If one of his reasons for his not attending to his duties is that 'unfortunately he is not very civilized,' Section 488, Criminal P.C. should be applied in the case and the provisions of that section should be administered as a healthy antidote to his barbarous tendencies.
20. I am not aware of any social rules prevailing in the Hindu system of society, at the present day and hour or in comparatively recent times which allow or countenance the habitual ill-treatment of the wife by the husband nor am I aware of any custom in vogue which would compel upon the return of the wife to the husband is spite of his habitual ill-treatment, rendering thereby the wife subject to a perpetual course of brutal and inhuman treatment. The learned Magistrate has observed that the husband is not a man with sufficient means being of the labouring class. The complainant stated in her petition that the husband was a mason or brick-layer and that he earned Rs. 1-4-0 a day. This statement was not traversed by Hira. This statement has also not been traversed by his counsel who appears before me to-day. The monthly income of Hira if he gets work day after day would amount to Rs. 37-8-0. Treating his monthly earnings on an average as about Rs. 21 a month and making allowance for days when Hira might be left without any work, I direct that Hira should pay to his wife Rs. 8 a month and that the payment should be made on the first day of every month commencing from 1st August 1929. The result is that subject to the remarks indicated above I allow the application for revision, set aside the order of the Court below and direct that Hira should pay Rs. 8 per month to his wife Mt. Kaluiya from 1st August 1929. In view of the peculiar circumstances of the case I make no order as to costs.