V.P. Tyagi, J.
1. The learned Sessions Judge, Udaipur, vide his order dated 29th August, 1966, has made this reference under Section 438 of the Code of Criminal Procedure recommending that the order of the sub-Divisional Magistrate, Udaipur, dated 2nd July, 1965, whereby a maintenance allowance of Rs. 40 per month has been ordered to be paid to Mst. Tulsi by her husband Krishanlal be set aside.
2. This reference arises out of the following circumstances:
3. Mst. Tulsi, a girl of about 17 years of age, was married to Kishanlal in the year 1960, but it is alleged that she was not treated properly by her husband and her mother-in-law According to Mst. Tulsi she was thrown by her husband from the first floor of the house with a result that she broke her hand and leg by that fall She was not treated for about a month and a half by her husband, nor was any information sent to the parents of Mst. Tulsi about her condition. One day Mst. Tulsi slipped away from the house of her husband and went to her maternal grand-father who was a resident of a nearby village and there she related her woeful tale to him. It is said that the matter was reported to the police by the maternal grand-father of Mst. Tulsi and Tulsi was medically examined. This medical examination revealed that she had sustained two fractures, one in the hand and the other in the leg. She was then brought to the house of her father Nandlal. The financial condition of Nandlal was not very satisfactory and, therefore, he moved an application on behalf of Mst. Tulsi in the court of the Sub-Divisional Magistrate, Udaipur under Section 488 Criminal Procedure Code praying that Kishanlal may be directed to pay maintenance allowance to his wife who has been rendered useless to maintain herself.
4. Notice of this application was issued by the Sub-Divisional Magistrate to Kishanlal and he filed his reply stating that Nandlal wanted to give Mst. Tulsi in Nats to somebody else and, therefore, this false charge that she was neglected and maltreated by the non-applicant has been foisted on him.
5. Both the parties were allowed to lead evidence in support of their stand. The learned Magistrate, after assessing the worth of the evidence produced by the parties, came to the conclusion that Mst. Tulsi was cruelly treated by her husband and that in the circumstances of the case she was entitled to get a maintenance allowance of Rs. 40/- per month from him.
6. A revision was filed by Kishanlal against that order of the Sub-Divisional Magistrate in the court of the learned Sessions Judge, Udaipur, and the learned Judge after hearing the parties recommended for setting aside the order of the learned Magistrate on the grounds (1) that the father of the girl Nandlal had no locus standi to file an application under Section 488 Criminal Procedure Code on behalf of Tulsi; (2) that the learned Magistrate, who had dismissed the petition in default, had no jurisdiction to restore it to its number and (3) that the applicant could not establish a neglect on the part of the husband.
7. Mr. Arjunlal Mehta has supported this reference while Mr. Hastimal Parekh opposed it vehemently.
8. The learned Judge while making the order of reference has come to the conclusion that a case of cruelty to the wife had been made out but he observed that the husband of Mst. Tulsi was never asked to pay maintenance and therefore it cannot be inferred that the husband neglected or refused to maintain his wife. The statement of Mst. Tulsi has been read out to me. She has clearly stated that one day she forgot to close the room where the fodder of the cattle was kept by her husband and on that account she was given beating by her husband and she was pushed down from the first floor of the house with a result that she broke her leg and foot due to that full. She also states that she was badly treated by her husband and by her mother-in-law. Her grievance further is that she was not given any treatment by her husband with the result one leg of hers has been permanently shortened and that she has been rendered crippled for doing any labour. This statement of Mst. Tulsi finds corroboration by Ghan Shyam who used to supply milk to the husband of Mst. Tulsi This evidence has been believed by the learned Magistrate and the learned Judge, probably on the basis of this evidence, has come to this finding that a case of cruelty to the wife has been made out.
9. Kishanlal has tried to refute this charge of throwing his wife from the first floor to the ground floor by stating that she had an accidental fall in the stair-case, but it appears to be an after-thought of Kishanlal as he does not mention this fact of accidental fall in his reply.
10. The question that now arises is whether this sort of cruel treatment meted out to Mst. Tulsi at the hands of her husband would entitle her to claim a maintenance under Section 488 Criminal Procedure Code. I am in respectful agreement with the following observations of Harries C. J. in Bathulu Bhagirathi v. Bathulu Lakshmi Devi AIR 1940 Pat 242:
'In a claim for maintenance by wife it is no defence for a husband to say that he is prepared to take his wife back if the facts show that the wife has reasonable cause for fearing to return to the husband's home. If a wife has been ill-treated and there is ground for believing that if she returns the ill-treatment will continue, then the wife is entitled to live apart from her husband. In such a case, the husband who is the guilty party, must maintain his wife. Causing a wife to leave the protection of the husband by ill-treatment is tantamount to driving the wife deliberately from home.'
11. In the instant case, it is established from the evidence of Mst. Tulsi that she was not only ill-treated by her husband but she received cruel and inhuman behaviour from the husband and the mother-in-law so much so that she was thrown by giving a push from the first floor to the ground floor which made her cripple and incapacitated her for doing any manual labour to earn her livelihood. The plea advanced by learned counsel for Kishanlal that he is prepared to keep Mst. Tulsi with him, in my opinion, cannot be availed in the circumstances of the case. This kind of behaviour of the husband is nothing short of neglect and I am of opinion that Mst. Tulsi has a right to refuse to live with her husband in these circumstances and the husband is under obligation to maintain her.
12. The second ground advanced by the learned Judge for setting aside the order of the learned Magistrate is that the Magistrate had no authority to restore the application which was dismissed by him in default. It will be relevant to give out some details which led to the dismissal of the application in this case. The application appears to have been filed in the court of the Sub-Divisional Magistrate. Udaipur, on 17th September, 1964 and it was registered on 5th October, 1964 The Court ordered to issue notices to the opposite party and 3th of December, 1964 was fixed as the first date of hearing and it was directed that the hearing would take place at Nathdwara. It so happened that the learned Magistrate went on leave and he could not proceed to Nathdwara to hear this case. The office, therefore, changed the date of hearing and the next date fixed was 15th January, 1964. It was, however, noted by the office that nobody in the case was present at the time when the date was changed.
On the 13th of January, 1965, the case was put up before the learned Sub-Divisional Magistrate and he ordered that because nobody was present in the court on the last date of hearing, that is, 5th December, 1964, therefore, the petition should be dismissed. On the 15th of January, 1965 when the petitioner and his counsel Shri Roshanlal Pagaria went to the court, they found that two days earlier their petition had been dismissed by the learned Magistrate and, therefore, an application for restoration was immediately submitted by Shri Roshanlal Pagaria stating that the learned counsel and the petitioner came to the court on 5th , December, 1964 when the date was already changed by the office. It was also urged that the case could not be dismissed on 13th January, 1965, as the next date of hearing was already fixed which was 15th January, 1965. It so appears that the learned Magistrate realised his mistake and while exercising his inherent power under Section 561-A of the Code he restored the application. Learned counsel appearing on behalf of Kishanlal, however, could not support the impugned order of the Learned Judge on this account and stated that the order of restoration cannot be challenged by him In my opinion, this cannot be taken as a ground for setting aside the order of the Magistrate granting maintenance to Mst Tulsi.
13. The last ground urged before me is that the father of the girl had no locus standi to file an application under Section 488 of the Criminal Procedure Code on behalf of his daughter praying for the maintenance of the daughter from her husband.
14. Para 5 of the petition discloses that the father was the guardian of the girl as she was minor and that on account of the injuries sustained by her she was not in a position to move out of the bed from the hospital where she was admitted as an indoor patient and, therefore, the application was filed by the father on behalf of his daughter. Learned counsel appearing on behalf of Kishanlal could not point out any provision in the Criminal Procedure Code which creates a bar for the father to file such an application on behalf of his minor daughter under Section 488 of the Criminal Procedure Code.
He, however, relied on an authority of this Court in Mst. Dhulki v. State, 1960 Raj LW 127 where the learned single Judge observed that the Magistrate had no authority to initiate proceedings under Section 488 Criminal Procedure Code suo motu since that section contemplates an application for maintenance either by the aggrieved wife or by one who is incharge of the neglected wife. Learned counsel has laid much stress on the words 'aggrieved wife' used in this authority and on that basis it was urged that it is only the wife who felt aggrieved by the conduct of the husband who can move an application under Section 488 Criminal Procedure Code to the proper court I carefully perused the provisions of Section 488 Criminal Procedure Code, and I can confidently say that it does not contain any bar which may come in the way of the father of a minor girl to move the court for the maintenance allowance for his daughter who has been incapacitated by the husband himself to go to the court of law to submit the application.
It is not disputed before me that Mst. Tulsi was a minor at the time when the said application was moved and that she was living with her father who was under the circumstances natural guardian of the girl. As is apparent from the averment made in para 5 of the petition, Mst. Tulsi was an indoor patient on account of the injuries sustained by her at her husband's house and that she was not in a position to move out from her bed. In these circumstances, if the father, who was not of sufficient means to maintain his daughter, moved an application on behalf of his daughter, it cannot be said that the application was by a person who had no locus standi in the matter.
15. I do not find any force in all the three grounds relied upon by the learned Judge to set aside the order of the Sub-Divisional Magistrate. The reference is, therefore, rejected.