(1) Facts giving rise to this revision briefly stated are as follows: Shrimati Ranjit Kaur petitioner was married to the respondent Dr. Avtar Singh on 12-8-1947, whereafter they lived together for four or five years and Shrimati Ranjit Kaur gave birth to a daughter Mst. Parminder kaur in the year 1951. In her application under S. 488, Criminal Procedure Code, claiming maintenance for self and her minor daughter, filed on 4-11-1957, she alleged that in the year 1952 the respondent took another wife and, after maltreating her (Shrimati Ranjit Kaur), turned here out of his house, where after she had been living in the village of her father and that in the year 1953 when the respondent was approached he wrote a letter, Exhibit P. W.2/A, informing her and her people that he had nothing to do with them. The respondent contested the application denying the allegations of neglect, refusal to maintain or cruelty though he admitted that he had contracted another marriage. A further plea was taken by him that till Dusehra 1957, the petitioner had been living with the respondent at Jagraon. He also offered to maintain her if she was agreeable to go and live with them.
(2) In view of the evidence led on behalf of the respondent showing that the minor daughter Mst. Parminder Kaur was admitted into a local school early in October, 1957, and remained there for some time, the learned Magistrate came to the conclusion that the story of the petitioner that she had been living with her father for the last six years was not correct. He further held that the mere fact that the respondent had contracted a second marriage did not entitle the petitioner to claim maintenance because the husband was prepared to maintain because the husband was prepared to maintain her notwithstanding the fact that he had contracted a second marriage. In view of this, the application filed by the wife was dismissed. On a revision being filed by the wife, the learned Sessions Judge, Ludhiana, has forwarded the records of the case with the recommendation that the conduct of the respondent in refusing to pay maintenance to his wife except on the condition that she should live with him, amounts to refusal to maintain her and that the order of the learned Magistrate may be set aside.
(3) Having heard the counsel for the parties, I am inclined to agree with the recommendation made by the learned Sessions Judge. As the matter was argued at great length by the counsel for the parties, I would like to give my reasons for coming to the above conclusion. The relevant portions of sub-ss. (1) and (3) of S. 448 are to the following effect:
'(1) If any person having sufficient means, neglects or refuses to maintain his wife * * * or child * * * a Magistrate * * 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 * * *.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount * *.
Provided 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.
If a husband has contracted marriage with another wife * * * it shall be considered to be just ground for his wife's refusal to live with him: Provided, further, that no warrant shall be issued for the recovery of any amount * * *.'
The learned counsel for the respondent-husband urged that under sub-s. (1), it is the duty of the petitioner to establish two things: First, that the respondent has sufficient means, and secondly, that he neglects or refuses to maintain his wife or child. He contended that the proviso which follows sub-s. (3) has nothing to do with sub-s. (1) and that while considering whether the husband has neglected or refused to maintain his wife, the questions whether the wife is living separate from him for good reasons or not or whether the husband has contracted another marriage are altogether irrelevant.
According to him the proviso can be taken into consideration only after an order for the payment of maintenance allowance has been made by the Magistrate under sub-s. (1) and the same is desired to be enforced by the wife. If this argument of the learned counsel is accepted, it would mean that in an application under S. 488, Criminal Procedure Code, for fixation of maintenance, the Court is not entitled to take into consideration the offer made by the husband to maintain his wife on the condition of her living with him even if such an offer is made in good faith and even though the wife has not just cause to stay away from her husband. This, as was observed by Hedge J. in Syed Ahmad v. N. P. Taj Begum, AIR 1958 Mys 128.
'would make the whole section look ridiculous. Courts have uniformly accepted the view that a husband could in an application under Section 488, Criminal Procedure Code, take the plea that he is willing to maintain his wife if she lives with him'. Furthermore, one cannot understand why a plea which may be open to a husband in refusing to comply with the order of the learned Magistrate after the same has been made should not be the order in the first instance. The learned counsel for the respondent has not been able to refer to any decided case where the husband has been prevented from taking this plea at the time of the hearing of the application when the learned Magistrate is dealing with the question under sub-s. (1). The only case to which he made a reference was Roshan Bano v. Azim, 1943-45 Pun LR 18: (AIR 1943 Lah 59). However, in that case this point was not directly involved though an observation was made by the Division Bench that this proviso is a proviso to sub-s. (3) and not to sub-s. (1) and the ground given in this, connection by the Bench was that the second proviso that follows, definitely relates to the enforcement of the order under sub-s. (3).
But, as already stated, this point was not directly involved and this case cannot be treated as an authority on this point and I have not doubt in my mind that the first part of the proviso is available to the husband even under sub-s. (1) at the time of the decision of the application as well as at the time of the enforcement of the order. If that be so, then the latter part of the proviso would be applicable as well and the trial Magistrate is bound to consider the grounds given by the wife, if any, while refusing an offer made by the husband to maintain her on condition of her living with him. If the Magistrate finds that the grounds given by her are just, then the conditional offer made by the husband will not be of any avail to the husband.
(4) There is some conflict of opinion as to whether taking of the second wife or keeping of a mistress by itself is sufficient for passing an order of maintenance against the husband irrespective of it being proved that the husband had been guilty of neglect or refusal to maintain his wife. I, however, feel that it is not necessary to go into this controversy.
(5) There can be no manner of doubt that under sub-s. (1) before a Magistrate can pass an order, he must be satisfied with regard to two matters, namely, that the husband has sufficient means and that he has neglected or refused to maintain his wife or child. There is, however, nothing to indicate how neglect or refusal is to be established. Where the husband offers to maintain his wife only on the condition of her living with him and if the Court finds that the refusal by the wife to go and live with her husband is justified, such a conditional offer by itself would really amount to refusal on the part of the husband to maintain his wife if she continued to live away from him. Thus, where the husband had taken a second wife and he refuses to maintain his first wife unless the latter is agreeable to go and live with him, this circumstances by itself will be sufficient to establish refusal of the husband, and thus, in practice, the existence of a second wife or the keeping of a mistress would, unless there is something else proved against the wife, result in the acceptance of the petition of the wife for the grant of the maintenance. Reference in this respect may be made to the observations of Shah C. J. in Govindram v. Ratanbai Nathuram. AIR 1956 Sau 105, at p. 106 to the following effect:
'Theoretically speaking an initial neglect or refusal by the husband is no doubt necessary in order that the Magistrate can entertain the wife's application for maintenance, but in practice no real difficulty will be felt because the first wife will be justified in living away from the husband and if the husband does not maintain her separately then his failure will amount to neglect or refusal entitling the wife to maintenance. Therefore, in effect the fact of the husband marrying a second wife entitles the first wife to maintenance. This is in accord with the view taken in Gunni v. Babu Lal, AIR 1952 Madh B 131; Rajeswariamma v. K. M. Viswanath, AIR 1954 Mys 31; Senapathi Mudaliar v. Deivanai Ammal, AIR 1950 Mad 357 and Maiki v. Hemraj, AIR 1954 All 30'.
(6) In view of the above, therefore, I accept this revision, set aside the order of the learned Magistrate, but in view of the fact that the learned Magistrate has not given any finding as to the reasonable amount which Shrimati Ranjit Kaur and her minor daughter are entitled to get from the respondent. I send back the case to the Court of the Additional District Magistrate, Ludhiana, for giving a finding on this point after hearing the arguments of the parties' counsel. The counsel for the parties have been directed to cause their clients to appear before the Additional District Magistrate on 10-9-1959, for further proceedings.
(7) Revision accepted.