(1) This revision application arises out of an order passed by the Judicial Magistrate, First Class, II Court, Surat, under S.488, Criminal P.C., allowing maintenance to a wife and a child. In revision, two points are urged. Firstly, it is contended that sub-s. (4) of S.488, Criminal P.C., has not been considered by the learned Magistrate. That sub-section reads as follows:
'No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or that without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.'
It is contended that the wife has refused to live with her husband without any sufficient reason, although the husband has offered to take the wife provided she behaves well. An offer by the husband to keep the wife may be made before the application is filed. It may be made after the application is filed and before the order is passed. It may be made after the order is passed and during the enforcement of the order. It may be a conditional offer or it may be an unconditional offer. It may be bona fide or it may not be a bona fide offer. The offer can also be made after the order is passed, and such a contingency is contemplated in sub-s. (3) of S.488, Criminal P.C.
(2) In the present case, however, the offer was, made in the letter dated 17-6-63, while the application for maintenance was filed on 10-6-63. Reference to this offer is also contained in the evidence. In the evidence, the husband had deposed as follows :
'I have no objection to applicant staying with me. The only condition being that she should behave well.'
For the purpose of sub-s. (4) of S. 488, Criminal P.C., it is not sufficient that there is a conditional offer, the condition being that the wife should behave well. If the husband tells the wife that he is willing to take her if she behaves well, the wife as well can reply that she is willing to live with the husband if he behaves well. It is very difficult to see whether the condition has been fulfilled or not fulfilled. In my opinion, a conditional offer would not invite an application of sub-s. (4) of S.488, Criminal P.C. Therefore, the contention of the learned counsel is rejected.
(3) But there is substance in the second contention that the learned Magistrate has misread the evidence and has in his judgment wrongly made a statement that certain portion of evidence has not been challenged or denied. In his judgment, the learned Magistrate has observed as follows:
'The part of the applicant's evidence so far it relates to opponent's sister Laxmi having dragged her out of the house and removed on the main road is not denied by the opponent in his evidence and not challenged in cross-examination of applicant. Further evidence of the applicant on the point that after the incident, applicant along with her sister went to the opponent at his shop and begged of him to allow her to stay with him or in the alternative providing maintenance, has gone unchallenged in her cross-examination and gone undenied in opponent's evidence at Ex.7.'
The evidence regarding the husband's sister Laxmi having dragged the wife out of the house and removed on the main road has been denied and challenged in the cross-examination by the husband. The evidence that the wife went to the husband's shop along with her sister and begged of him to allow her to stay with him has also been denied in the evidence of the husband. A Judge or a Magistrate should not make such a mistake while appreciating evidence. These mistakes may colour the entire approach to the evidence. It is open to a Magistrate or Judge to appreciate the evidence in his own way but he should not make mistakes of facts as regards the record.
(4) The judgment of the learned Magistrate is, therefore, set aside and he is directed to re-appreciate the evidence and give his finding after properly appreciating the evidence. It is open to him to come to the same finding or to a different finding.
(6) Revision allowed.