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Smt. Bhanwari Bai Vs. Bheroon Lal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1973CriLJ804; 1972()WLN373
AppellantSmt. Bhanwari Bai
RespondentBheroon Lal
Cases ReferredNathuram v. Smt. Ramsri
Excerpt:
cr. p.c. - section 488--husband marrying second wife--held, husband cannot insist on conjugal rights.;bheroon lal cannot insist on mst. bhanwari bai now rendering him his conjugal rights. she is relieved of that obligation on account of his having contracted another marriage. she is, therefore, entitled to a maintenance allowance is a matter of right.;(b) cr. p.c. - section 488--magistrate not to pass a conditional order.;the application can be either allowed and the amount of maintenance determined or it can be dismissed, a magistrate cannot pass an order not allowing maintenance for the present and directing that in the event of certain conditions coming into existence maintenance allowance shall be payable. such a conditional order is incapable of execution.;(c) cr. p.c. - section..........p.c. reference in this connection may be made to nathuram v. smt. ramsri : air1965all129 . the learned judge in that case observed that a perusal of section 488. criminal p.c. shall make it clear that it contemplates only two kinds of orders. the application can be either allowed and the amount of maintenance determined or it can be dismissed. a magistrate cannot pass an order not allowing maintenance for the present and directing that in the event of certain conditions coming into existence maintenance allowance shall be payable. such a conditional order is incapable of execution added the learned judge. i am in respectful agreement with him. therefore, the order of the learned sessions judge is clearly erroneous and i reject: his reference.5. the learned city magistrate has fixed.....
Judgment:
ORDER

B.P. Beri, J.

1. Mst. Bhanwari Bai instituted en application under Section 488 of the Code of Criminal Procedure against her husband Bheroon Lal craving for maintenance allowance on the ground that he neglected to maintain her despite his ability to do so and had married again; This was resisted by her husband and the City Magistrate. Bhilwara. allowed the application and fixed the allowance at the rate of Rs. 45/- per month. Dissatisfied the husband preferred a revision before the Court of Sessions Judge. Bhilwara and prayed that the order of the City Magistrate be quashed. The wife also preferred a revision application praying that the maintenance allowance awarded toy the City Magistrate be enhanced. The learned Sessions Judge dismissed the petition filed by Smt. Bhanwari Bai and allowed that of the husband on the condition that the wife should live with her husband and in that case the husband shall have to maintain her according to his status and financial position Paving for all her needs, like residence, food, clothes and medical attendance. He was required to give a security in the sum of Rs. 2,000/- to the effect that he would not show any neglect in the discharge of his duties enjoined upon him. It was further ordered that in case he neglected to maintain his wife the security shall be forfeited and the forfeited amount of the security shall be paid to the wife and she will receive Rs. 45/- per month as maintenance allowance thereafter. He has accordingly made a reference benefit No. 100/71 dated 9.2.1971. Mst. Bhanwari Bai has preferred a Criminal Revision No. 513 of 1971. As the reference and the revision application relate to the same matter they can be conveniently disposed of together.

2i Mr. P.C. Mathur. learned Counsel for the husband, in all fairness conceded and in my opinion rightly that the order under reference for security could not have been passed by the learned Sessions Judge. He. however, urged that the husband is still prepared to keep Mst. Bhanwari Bai and look after her health and no order for maintenance needs to be passed. Mr. Dalpat Singh Shishodia. learned Counsel for the wife argued that in these days of exorbitant prices a sum of Rs. 45/- was not enough to maintain a blind person and the maintenance allowance should be enhanced.

3. The order of the learned Sessions Judge evidences his desire to place the husband as it were on probation of good conduct. vis-a-vis his wife Mst. Bhanwari Bai. The background of this case, briefly stated and not disputed be-for me is that Bheroon Lal and Mst. Bhanwari Bai were married some eight years ago. In 1967 when Mst. Bhanwari Bai became big with a child and on account of some complications she lost her vision. She was attended to by doctors, but without any success and her father removed her to his house. The husband says that he wanted her to return but as she did not come he was obliged to contract another marriage. In these circumstances is Mst. Bhanwari Bai not relieved of her obligation to render to her husband his conjugal rights? The answer has been even by me in Hemchand v. Mst. Prabhati Bai. 1962 Raj LW 488 in the affirmative. The admitted facts are that Bheroon Lal has another wife in addition to Mst. Bhanwari Bai. Bheroon Lai cannot insist on Mst. Bhanwari Bai now rendering to him his conjugal rights. She is relieved of that obligation on account of his having contracted another marriage. She is. therefore, entitled to a maintenance allowance as a matter of right.

4. A conditional order as suggested by the learned Sessions Judge in the first instance, could not be passed under Section 488 Criminal P.C. Reference in this connection may be made to Nathuram v. Smt. Ramsri : AIR1965All129 . The learned Judge in that case observed that a perusal of Section 488. Criminal P.C. shall make it clear that it contemplates only two kinds of orders. The application can be either allowed and the amount of maintenance determined or it can be dismissed. A Magistrate cannot pass an order not allowing maintenance for the present and directing that in the event of certain conditions coming into existence maintenance allowance shall be payable. Such a conditional order is incapable of execution added the learned Judge. I am in respectful agreement with him. Therefore, the order of the learned Sessions Judge is clearly erroneous and I reject: his reference.

5. The learned City Magistrate has fixed Rs. 45/- per month as maintenance allowance. Mst. Bhanwari Bai claims Rs. 100/- per month in her original application and she repeats her demand before me. I have to adjust a balance between financial ability of the husband and the needs of the wife, having regard to the status to which the (parties belong. I cannot lose sight of the stark reality that Mst. Bhanwari Bai is blind. She would need constant assistance and may be, also medical aid. The living index is constantly on the rise and the medical prescriptions of late have become notoriously expensive. Rupee is consistently losing its purchasing power The question however remains of the husband's means. He is said to be living in a joint family and the family owns a house, which, according to the petitioner, fetches a rental income of about Rupees 200/- per month. There is a flourishing 'Pan' shop near a cinema house in the growing city of Bhilwara and the estimated gross receipt of the shop has been placed at Rs. 25/- per day. The father of Bheroon Lal conducts his own trade adventures of preparing tobacco and 'Pan masala'. In this background a sum of Rs. 60/- per month to my mind would not be too much for the husband, although it will be bare minimum for the wife. Mst. Bhanwari Bai has claimed Rs. 75/- by way of the allowance for a servant. This is a tall claim for a woman from her strata of society. Her father is 42 years of age and her mother is likely to be younger than her father. I presume, and she will be receiving their attention for many years to come and. therefore. I disallow her claim for a maid servant. I allow her an allowance of Rs. 60/- per month.

6. I cannot help observing that Mst. Bhanwari Bai came to the Court in 1967 and it is 1972 and she has not received a penny for her allowance till today. Section 488, Criminal P.C was disagreed by the Legislature to render a prompt assistance to neglected women and children so that they may be saved from vagrancy but unfortunately it has not been appreciated in this case and it has been permitted to linger. Should not Section 488. Criminal P.C. confer powers on Magistrates concerned to allow interim maintenance allowance in appropriate cases? Fortunately Mst. Bhanwari Bai has her parents to support her.

7. While learned Counsel for Mst. Bhanwari Bai prays for costs learned Counsel for Bheroon Lal prays for allowing instalments for the payment of the accumulated arrears of maintenance. Both the requests are reasonable. I allow Mst. Bhanwari Bai cost in the sum of Rupees 250/- for all the three Courts. The amount of costs and the accumulated arrears of maintenance allowance shall be paid by Bheroon Lal at the rate of Rs. 140/- per month. until the entire amount is paid. In addition to Rs. 140/- per month, he will have to pay Rs. 60/- per month for Mst. Bhanwari Bai's maintenance allowance as directed. In the event of Bheroon Lal's failing to pay any four monthly instalments of Rs. 140/- towards the satisfaction of the arrears aforesaid Mst. Bhanwari Bai shall be entitled to take steps for the realization of the entire amount then remaining unpaid by way of arrears.


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