1. FACTS Dhan Kaur was married to Niranjan Singh 17-18 years ago and a son Mehar Singh was born to them. About 10/12 years ago, a brother of Niranjan Singh died, leaving behind Bhan Kaur as widow, whom Niranjan Singh remarried in order to save the ancestral property. Thereafter Dhan Kaur continued to live with her husband and gave birth to a son, who died during infancy and also to a daughter Kelo, who is still living and is one of the applicants. After sometime at the instigation of the co-wife, Bhan Kaur, Niranjan Singh started mal-treating Dhan Kaur. It was said that education of Mehar Singh was stopped. About a month before making the application, Dhan Kaur was beaten and turned out of the house. A panchayat was taken but to no effect.
Niranjan Singh respondent admitted all the facts aforesaid, but explained that there was no neglect on his part. As a matter of fact Dhan Kaur had gone to visit her parents and there she was instigated by her brothers to file an application under Section 488, Cr.P.C.
The learned magistrate has accepted the version of the husband as correct and has held that Dhan Kaur's refusal to live with her husband is not justified and, accordingly, rejected the application under Section 488, Criminal Procedure Code. The petitioner went up in revision to the Court of the Additional Sessions Judge, Ferozepur who referred the matter to the High Court.
ORDER OF REFERENCE TO DIVISION BENCH
J.S. Bedi, J.
(D/- 11-8-1959) The short point which requires determination in this reference is whether a wife is entitled to live separately and claim maintenance on account of remarriage of her husband. On this point there are conflicting authorities. Tek Chand J. in Ishar v. Mst. Soma Devi, AIR 1959 Punj 295 held that mere fact that the husband has contracted a second marriage or has kept a mistress, by itself, is not a valid ground for claiming maintenance, under section 488, if the husband has not otherwise neglected or refused to maintain her. Contrary view has been taken by Randhir Singh J. in Smt. Maiki v. Hemraj, AIR 1954 All 30 wherein it has been held that no other ground for refusal to live with the husband need be looked into if there is the good ground of husband's contracting another marriage, for the wife's refusal to live with her husband.
The fact that the wife came once of twice to live with her husband even after his remarriage does not improve matters in favour of the husband. The same view has been taken by Guha J. in Kunti Bala Dassi v. Nabin Chandra Das, (S) AIR 1955 Cal 108, by J. N. Wazir C. J. and S. Murtaza Fazl Ali J. in Mst. Biro v. Behari Lal, AIR 1958 J and K 47 and by Grover J. in Dr. Mukand Lal v. Smt. Jyotishmati, 1958-60 Pun LR 314: (AIR 1958 Punj 390). This point arises almost in many cases daily. Although I agree with the authorities quoted later but this point is not free from difficulty. It may, therefore, be decided more authoritatively, by a larger Bench. I, therefore, direct that the papers be placed before my Lord the Chief Justice for orders.