1. The facts leading to this revision are very simple. The applicant preferred an application to the First Class Magistrate, Rajkot, fort maintenance against her husband, the present opponent, under Section 488, Cr.P.C. Some time before the application the opponent came to Rajkot and lived in rented house with the applicant. After about three months thereafter he returned to Botad which is his home town and it is alleged that since then he has neglected to maintain her. After an exchange of notices between the parties the opponent filed a suit against the applicant in the Court of the Civil Judge, Junior Division, Botad and obtained a decree for restitution of conjugal rights on 20.8.51. The applicant filed the present application for maintenance in the Court of the First Class Magistrate, Rajkot. The suit and the application were filed almost simultaneously, the suit having been instituted on 23.2.50 while the present application was instituted four days thereafter namely on 27.2.50.
2. The petitioner was represented in the suit in Botad by a Pleader but beyond that she does not appear to have taken any active part in the suit. She was content with prosecuting her application in the learned Magistrate's Court at the Rajkot end. After the evidence of the petitioner's witnesses and the evidence of some of the opponent's witnesses was recorded, the opponent produced a certified copy of the decree in the Magistrate's Court. The learned Magistrate then recorded the remaining evidence of the opponent' and after hearing arguments he made an order rejecting the petitioner's application for maintenance on the simple ground that the decree of the Civil Court was binding on her. He did not decide the merits of the petitioner's application. The learned Sessions Judge refused to entertain an application for revision against the learned Magistrate's order and, therefore, the petitioner has approached us in revision against the orders of the Courts below.
3. We are unable to endorse the learned Magistrate's decision which implies that the wife is not entitled to have her application considered on merits merely because the husband started. Civil proceedings almost simultaneously with her in another Court and won in the race by obtaining a decree in his favour before the Magistrate could dispose of the application before him. Section 488 casts upon the Magistrate the responsibility deciding the question whether the husband has refused to maintain the wife and though the decree against the wile would be a very cogent piece of evidence against her, it cannot relieve the Magistrate of this statutory obligation to consider the wife's application for maintenance on merits. The view of the learned Magistrate that he could not consider the wife's application on merits leaves out of account cases in which a husband may obtain paper decree from a Civil Court with a view to anticipate maintenance proceedings without any intention of Keeping his wife or fulfilling his obligations towards her.
4. The learned Magistrate relied upon Tarak Nath v. Sneharani Dhar AIR 1949 Cal. 87 which lays down the rule mat the decree for restitution Of conjugal rights against the wife is tantamount 4o a decision by a competent Civil Court that the wife had not sufficient reason for refusing to live with her husband. As against this decision we may refer to Pakruddin Shamsuddin v. Bai Jenab AIR 1944 Bom. 11.
The following observations from the judgment of Beaumont C.J. may be quoted with advantage:
I agree that where a Civil Court has made a decree for restitution of conjugal rights, it has decided on the material before it that the wife ought to return to the husband, and if that is so, if she is in default in not returning, prima facie, the order made under Section 438 ought to be cancelled. The Magistrate's discretion under that section must no doubt be exercised judicially, but, in my opinion, it is a real discretion. I think the present applicant is going too far in suggesting that the Magistrate is bound to cancel the order because a Civil Court has made an order for restitution of conjugal rights. I think the Magistrate is entitled, and indeed bound, to satisfy himself that the applicant is bona fide prepared to give effect to the order of the Civil Court; that he is prepared to offer the wife a home which she ought to accept. The mere fact that the Civil Court is satisfied on that point does not justify the Magistrate in surrendering his own discretion, he must be satisfied. Unless he is satisfied, the risk is run of a party having obtained a mere paper decree of a Civil Court without any intention of giving effect to it.
With respect we agree with the above statement of law. The Bombay decision as well as the Calcutta case on which the Magistrate relied were cases in which the Magistrates were called upon to cancel the order of maintenance under Section 489 on the ground that the husband had obtained a decree for restitution of conjugal rights. But we do not see any distinction in principle between an application for maintenance made under Section 488, Cr.P.C. and an application for cancellation of the order of maintenance under Section 489, Cr.P.C. after the husband obtained a decree for restitution of conjugal rights against his wife. In both cases the Magistrate is called upon to decide whether the wife's refusal to live with the husband is justified. The learned Magistrate should, therefore, have decided the application on merits. In this case particularly after having recorded all the evidence it was his duty to give his findings after considering evidence on record. He did not do so and a remand has become Inevitable. The learned Magistrate is transferred and the application will have to be decided by another Magistrate who had not the advantage of seeing the witnesses. The procedure adopted by the learned Magistrate, therefore, entails considerable hardship and inconvenience but this cannot be helped.
5. The learned Advocate for the opponent argued that the learned Sessions Judge had considered the materials on record and had come to the conclusion that the petitioner was not entitled to claim maintenance. It does not appear from his order that he considered any materials before him except statements of the wife that she was unwilling to go to Botad and live with the opponent and of her brother that he would not send her to Botad. He does not appear to have taken into account the reasons alleged by the petitioner underlying her refusal to live with him. In any event, we think that in the interests of justice this case should be remanded to the First Class Magistrate, Rajkot who should hear the parties and give his decision on all points in the case. It is to be understood that no fresh evidence shall be led by any party. The application is allowed and the case is remanded as directed above. The Opponent shall pay the petitioner's costs.
6. I agree.