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Dewan Singh Wasawa Singh Vs. Harbans Kaur Dewan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Rev. No. 167 of 1961
Judge
Reported inAIR1962P& H247
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488
AppellantDewan Singh Wasawa Singh
RespondentHarbans Kaur Dewan Singh and anr.
Cases ReferredMst. Roshan Bano v. Azim
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........points that had been seriously agitated and require determination were: whether there had been a bona fide offer made by the husband in the proceedings to take back the wife to live with him and if so was it incumbent on the magistrate then to enquire into the reasons for wife's refusal to accede to the said offer.(3) on the first aspect, i find that in the instant case the offer made was somewhat belated and not bona fide. there is no evidence or material on the record to show that at any stage from the date of the wife having been turned out there had been effort made to bring her back or there was recourse to amity. a are statement at the trial is hardly enough to ground a finding that there was any bona fide offer made.(4) on the second aspect, my view is that the plain reading of.....
Judgment:
ORDER

(1) This petition for revision is from concurrent judgments of Courts below directing payment of maintenance allowance to the petitioning wife and a child of the marriage.

(2) The points that had been seriously agitated and require determination were: whether there had been a bona fide offer made by the husband in the proceedings to take back the wife to live with him and if so was it incumbent on the Magistrate then to enquire into the reasons for wife's refusal to accede to the said offer.

(3) On the first aspect, I find that in the instant case the offer made was somewhat belated and not bona fide. There is no evidence or material on the record to show that at any stage from the date of the wife having been turned out there had been effort made to bring her back or there was recourse to amity. A are statement at the trial is hardly enough to ground a finding that there was any bona fide offer made.

(4) On the second aspect, my view is that the plain reading of sub-sections to section 488 of the Code of Criminal Procedure with particular reference to Sub-sections 1, 2 and 3 shows that sub-section 1 relates to the requirements necessary to be proved prior to the grant of the maintenance order. The grounds as spelt out are neglect and maltreatment of the wife and husband having sufficient means. Sub-section 2 postulates the date from which it is to operate. Sub-section 3 lays down the procedure for the enforcement of the order obtained on proof of the requirements indicated. Proviso (1) to sub-section 3 sets out a defence available to the husband while the order is sought to be enforced and if the offer is genuine, the reasons for the refusal by the wife have to be enquired into. There is nothing to warrant a conclusion that the said proviso governs sub-section (1) also proviso (2) to sub-section 3 makes it amply clear that both of the provisos to sub-section 3 relate to enforcement of the order. I am supported in this view by the dictum in a Division Bench decision of Lahore High Court, Mst. Roshan Bano v. Azim, AIR 1943 Lah 59.

(5) I am otherwise of the view that 'refuse to maintain his wife' used in section 488 sub-section (1) cannot be equated with 'offers to maintain his wife on condition of her living with him' set out in Proviso 1 to sub-section (3).

(6) For all these reasons, the impugned orders and judgments cannot be assailed. The petition must, therefore, fail and I would dismiss it.

BF/D.H.Z

(7) Petition dismissed.


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