1. This is a recommendation made by Mr. G. C. Jain, Sessions Judge, Jullundur, dated the 21st December, 1955, to the effect that the order made by the Magistrate under Section 488, Criminal Procedure Code, be quashed.
2. Mst. Sibo was married to Bir Singh and they have a son aged eight. On the 29th of September 1955 the wife made an application under Section 488 of Criminal Procedure Code asking for maintenance. Evidence was recorded by the Magistrate. In support of the application Sewa Singh, a Sarpanch of the village, appeared as a witness and stated that he went with a Panchayat to the husband to take back the wife but he refused to take her back.
The cross-examination does not disclose that this part of the statement about the taking of the Panchayat was challenged. The next witness is Pritu, a brother of the wife, who has also stated that the husband has refused to keep the wife and has neglected to maintain her. The wife herself appeared as P. W 3 and stated that she was married when she was 13 and she lived with the husband for two or three years and after that she was given a beating and turned out of the house and the husband himself left her at her mother's place.
In cross-examination she stated that she did not know why her husband ill-treated her or was not prepared to take her back. She also said that. she was prepared to go with her husband provided the Panchayat of the village gave an assurance and the husband were to come to her parents' house and take her from there. What she seems to have said is that she was only prepared to go if she had assurance of her safety.
3. The husband went into the witness-box and stated that the wife was taken away by her mother who complained that she (the wife) was made to do all kinds of difficult household chores. He also said that in the previous Jeth he had taken Lachhman Singh and Mehr Singh to the wife taut she refused to return to his house and he offered to take her with him from the Court but he was not prepared to go to her parents' house. Saran Singh P. W. 1 appeared in support of the husband's case and said that the wife had refused to come with the husband, but in cross-examination he stated that the mother had told them that she Was not prepared to send the wife to her husband because she was made to do all kinds of unpleasent household work and she was subjected to ill-treatment.
P. W. 2 Lachhman Singh's statement is similar, and in cross-examination he stated that the mother had refused to send the daughter because of the illtreatment of the husband.
4. On the 31st May 1955 the learned Magistrate gave an opportunity to the parties to come to terms but unfortunately nothing came out of it as is shown by the order of the Magistrate dated the 15th June, 1955. Thereupon the learned Magistrate made an order awarding Rs. 40/- per mensem as maintenance to the wife. He relied upon the statement of Sewa Singh P. W. 1 and held that the husband was not prepared to) keep the wife although she was quite prepared to go to his house. In regard to the offer of taking her, he was of the opinion that it was a mala fide offer.
5. A revision was taken to the learned Sessions Judge who seems to have misdirected himself in regard to the law applicable to such cases. He was of the opinion-
The law is clear that if the husband offers to take back the wife, the wife must show sufficient reasons for her refusal to do so. If she fails to show any such reason, then her application for maintenance must be disallowed. In the present case, she has not been able to show any such reason; therefore, her application for maintenance is liable to be dismissed.
It appears to me that the attention of the learned Judge was not drawn to two decided cases. In - 'Sama Jetha v. Bai Wali' ILR 54 Bom 548 at P. 552 : (AIR 1930 Bom 348 at p. 350)(A), it was held that an offer to be effective has to be bona fide. In the Lahore High Court this matter was considered by Blacker J. in - 'Ram Singh v. Mt. Ram Bai' AIR 1943 Lah 223(B). Interpreting the words 'without any sufficient reason' the learned Judge said at page 225-
At this stage I must say that it seems to me that the words 'without any sufficient reason' are objective and not subjective. The wife's maintenance cannot be refused merely because on account of her poverty of expression or her failure to understand her own motives she is unable to analyse and state fully her reasons for refusing to go back to her husband. It is for the Court to examine the circumstances and see if those circumstances are or are not sufficient to justify the wife's refusal to accept the husband's offer.
6. In the recommendation sent the learned Sessions Judge does not seem to have examined the circumstances and seen whether they are sufficient to refuse the husband's offer or not. After all the words used in the section are objective and not merely subjective, and merely because the wife in a particular case has not been able to explain herself properly is no reason for the application of Sub-section (40 of Section 488, Criminal P. C.
In the present case I find that the husband and wife have been living apart for the last two years or so. The finding of the learned Magistrate was that the wife had been turned out by the husband and had been ill-treated. She was quite prepared to go back to the husband if he gave a guarantee of the Panchayat that she would not be treated harshly. He has not only refused to do so but he has even refused to go to her parents' village to fetch her back.
It seems that the learned Magistrate took a correct view in coming to the conclusion that the offer was a mala fide one and, as I have said, the learned Sessions Judge misdirected himself because he approached the case with a wrong view of the law.
7. I am satisfied on this evidence that it was the husband who has not made it possible for the marital home to continue and the learned Magistrate rightly ordered maintenance in the present case.
8. Mr. Charanjiva Lal Aggarwal urges most vigorously that the husband and wife should be called in this Court and efforts be made to bring about a reconciliation. The learned Magistrate tried that and was unsuccessful, and I do not think it will serve any useful purpose by getting the husband and wife here. I would, therefore, refuse to accept the recommendation and dismiss the petition and discharge the rule.