D.N. Das Gupta, J.
1. This revisional petition is directed against the order of a learned Magistrate of the first class, Burdwan granting under Section 488 of the Code of Criminal Procedure maintenance allowance to the opposite party No. 1, Begum Noorjahan and her child.
2. On 2nd September, 1963 an application was filed under Section 488, Cr. P. C. by Begum Noorjahan claiming maintenance from her husband Nizamul Haque for herself and her child aged about three years. The case of Begum Noorjahan is that she was formerly a Hindu, that her name was Protima Das and that her father's name was Jatindra Nath Das and that she is a posthumous child. Sometime after her birth her mother being helpless married one Ziauddin Mullick, a Muslim. Begum Noorjahan was married to Nizamul Haque on the 27th May, 1960 according to Muslim rites. A child was born to her by Nizamul on the 12th December, 1960. One of the conditions incorporated in the Kabinnama at the time of the marriage was that her husband would live in her house and that accordingly they lived together in Begum Noorjahan's house. Sometime after the birth of file child the husband began to illtreat her, so much so, that she gave birth to a still-born child on 14th August 1962 as the result of beating by her husband. On the 15th August, 1963 the husband left the wife's house. Her husband was addicted to drinking and was also attached to other women. Noorjahan tried to bring back her husband to her house but failed. Therefore, she was compelled to file an application under Section 488 Cr. P.C.
3. The stand that was taken by Nizamul Haque was that Begum Noorjahan was his wife and that a daughter was born to them as alleged by the wife and that he was prepared to maintain them provided they came to live with him at his house. It was also alleged by the husband that the application under Section 488 was not a bona fide application and that it was filed by his wife at the instance of other interested; persons so that they could live on the allowance that Noorjahan might succeed in getting through Court on her application under Section 488,
4. Both the wife and the husband gave evidence in the case. On behalf of the wife, P. W. 2 Habibur Rahaman, a Muslim marriage Registrar, was examined to prove the marriage and the terms of the Kabinnama. On a consideration of the evidence the learned Magistrate found that the husband refused and neglected to maintain the wife and the child and that the wife was entitled to maintenance allowance for herself as well as for the child. Accordingly the learned Magistrate granted a monthly maintenance allowance of Rs. 70/- for the wife and an allowance of Rs. 30/- for the child. The order was given effect from the date on which the order was passed viz. 19th May, 1964.
5. That the parties are legally mailed and that a child was born to them on 12th December, 1960 is beyond dispute. It appeal's from the evidence that the wife was illtreated by the husband from time to time. There is no reason for not accepting the wife's evidence on this point. I do not also find any reason to differ from the learned Magistrate that the husband refused and neglected to maintain the wife and the child.
6. It appears from the copy of the Registrar of Marriage that a sum of Rs. 10,000/- was fixed as Moharana. There were two conditions which were agreed to by the parties, viz., the husband and the wife. One of the conditions is that during the lifetime of the first wife the husband would not marry a second wife. But if the first wife became disabled or incapacitated and if she gave consent, then the husband could marry a second wife. The other condition is that the wife would live for ever in her father's house at Burdwan and if she ever wished to go to her father-in-law's house she might do so or she might not go. To that neither the husband nor her father-in-law nor any other member of her husband's family would be able to raise any objection. The husband was bound to live with his wife in the wife's house at Burdwan.
7. In her evidence the wife has given an explanation for inserting the conditions in the Kabinnama. She was originally a Hindu but she had married a Mohammedan husband. It was considered desirable by the parties that in those circumstances she would live not in her father-in-law's house but in her own house so that she might not be 'subjected to harsh terms'.
8. It would appear from the evidence of the husband that he lived at her house from the month of January 1962 to the month of August 1963. Evidently that was in terms of the conditions of the marriage. The wife has deposed in her evidence that after the husband left her house she tried to bring him back but she failed. She has also said that her husband was under an obligation to live in her house and that she apprehended danger to her life if she lived with the opposite party elsewhere. She has further deposed that she used to send her mother to persuade her husband to come back to her house. The husband did not go to his wife's place after leaving the place in the month of August 1963.
9. Mr. Banerjee, learned Advocate for the petitioner contends that a condition that the husband would have to live with his wife in her house is void according to Mohammedan Law and that it was opposed to public policy. He has drawn my attention to the following comments under Section 26 in 'Mohammedan Law in India and Pakistan' by Babu Ram Verma, 3rd Edition, at page 87. The comments appear under the heading 'Illegal conditions'. The comments are quoted below:
'As to the choice of residence.--A condition that the wife shall have absolute choice of residence is void. Conditions restraining the husband from making the wife reside with him or requiring that the husband would reside at the place of the parents of the wife is void.'
The comments appear under Section 26 which deals with respective rights and obligations of the parties resulting from a valid marriage. It is laid down in Section 26 that the wife 'becomes entitled to receive maintenance from her husband: according to the provisions of Chapter VII'. Chapter VII in the said book deals with 'Maintenance'. Section 84 in Chapter VII lays down, 'A wife is entitled to recover maintenance from her husband on the basis of an agreement made between the parties or their guardians provided that such an agreement is not opposed to any law or to public policy or the policy of Mohammedan Law'. The comments under the heading 'Valid agreement' under Section 84 are as follows:
'It is open to the wife to secure an agreement from the husband to give her separate maintenance in proper cases e.g., in the event of ill-treatment, or disagreement or in the event of her not being able to get on with another wife, or on the condition that he would maintain her at her parent's house. An agreement that the husband would give separate maintenance to the wife in case of disagreement is valid.
Such agreements, it has been held, are not opposed to public policy.'
10. The comments in the aforesaid treatise upon which Mr. Banerjee relies are mainly based on a decision of the Allahabad High Court reported in : AIR1926All615 Khatun Bibi v. Rajjab. That was a suit for restitution of conjugal rights and it was held that the agreement to the extent to which it bound the husband to live with his wife at her father's house was invalid and could not constitute a defence which was the real defence set up at the trial to a suit for restitution of conjugal rights. But the instant case is not such a case. Here is a case brought by the wife for maintenance. Mr. Banerjee has also referred to a decision of this Court reported in 18 Cal WN 693: (AIR 1914 Cal 369 (1)) Imam Ali Patwari v. Asfatunnessa. That case was decided on 9-7-1913. It was held in 18 Cal WN 693: (AIR 1914 Cal 369 (1)) that a condition in the Kabinnama that the husband was to live with the wife in her father's house and if he broke this condition she would have a right to divorce him, was illegal. This case again was not a case where maintenance was prayed for. That was a case where the question of divorce by the wife was under consideration. Mr. Dutta, learned Advocate for the opposite party, has referred to certain decisions of this Court. One of the decisions is reported in (1921) 25 Cal WN 888, Sabed Khan v. Bilatunnessa Bibi. The judgment of this Court was delivered on 13th May, 1919. In this case the wife was given the right to leave her husband's house and to live elsewhere on two contingencies. The first contingency was ill-treatment of the wife by the husband and the second contingency was difference or disagreement with husband or any member of his family. It was held that there is nothing in any of the authorities to show that the condition that the wife may leave her husband's house on ill-treatment is opposed to the principles of Mohammedan Law opposed to an agreement, such as the one in that case, which does not allow the wife to deny her Husband's conjugal rights but permits her, when ill-treated, to leave her husband's house, and to insist on those rights being exercised in her parent's residence. There is a case reported in (1882) ILR 8 Cal 327 Hamidoolla v. Faizunnissa where the contract was found to be legal. In that suit the plaintiff sued for restitution of conjugal rights. The defence was that under conditions of the Kabinnama which were entered into before marriage she received the power to divorce her husband under certain contingencies and that on their occurrence she had exercised that power and duly divorced him under the Mohammedan Law. The conditions in the Kabinnama were that the husband would allow the wife to be taken to her father's house four times a year and to erect a house for the defendant and to live with her there, should any dispute arise between her and the persons living in the same mess with the plaintiff. He also agreed not to beat and illtreat the wife and also agreed to pay her Rs. 400/- on account of dower money on demand. The contract was held to be legal. Mr. Dutta has also referred to a case reported in AIR 1936 Lah 716 Muhammad Yasin v. Mumtaz Begam. That suit was instituted by the wife for a declaration that she had validly divorced her husband. An agreement had been secured from the husband by the parent of a Mohammedan wife whose husband had been neglecting her and leading a life of idleness, that the husband would lead a respectable life, would earn his livelihood and maintain his wife and would live in a house approved by the wife and her parents and would otherwise properly behave towards his wife and that if he made default in the performance of any of the conditions the wife would be at liberty to divorce him. Such an agreement was held to be not invalid and opposed to public policy and the wife on the husband's failure to keep all the conditions was entitled to divorce him. Mr. Dutta also referred to a Privy Council decision reported in (1910) 7 Ind Cas 237 (PC), Nawab Khwaja Muhammad Khan v. Nawab Husaini Begum alias Dilbari Begam. By the agreement on which the suit, out of which the appeal before the Privy Council arose, was based, the defendant bound himself unreservedly to pay to the plaintiff the fixed allowance; there was no condition that it should be paid only whilst the wife was living in the husband's house, or that his liability should cease whatever the circumstances under which she happened to leave it. It was held that the wife would be entitled to allowance even if she refused to live with her husband.
11. Now in the instant case the condition that the husband would live with the wife at her house was incorporated in the Kabinnama in special circumstances. She has explained that it might riot be convenient or comfortable for. her to live with her husband's people in her husband's house and that she might be asked by her husband's people to observe strict forms which might have been difficult for her to observe. In these circumstances it cannot be said that there is anything in the agreement which is opposed to any law or to public policy or to principles of Mohammedan Law. The wife is certainly entitled to recover maintenance from her husband on the basis of such an agreement. Incidentally it may be observed here that the husband pretended complete ignorance of the aforesaid conditions in the Kabinnama. In his evidence-in-chief he has deposed, 'I did not know about the stipulations in Kabinnama'. In his cross-examination he has said, 'After institution of this case I came to know the stipulations of Kabinnama'. That evidence obviously is not true. It is not possible to believe that the husband who works as an Estimator in a government office would not know the terms of the Kabinnama.
12. On the facts and in the circumstances of this case the learned Magistrate was justified in holding that the wife was entitled to maintenance allowance for herself as well as for her child. But then the point is what amount should be realised by the wife from the husband. The husband has said in his evidence that his monthly salary is Rs. 220/-. The wife has given evidence that he has additional sources of income. The learned Magistrate thinks that he earns something extra by preparing plans and estimates etc., but he does not come to any finding as to the amount of extra income. On that basis the learned Magistrate has allowed a monthly allowance of Rs. 70/- for the wife and of Rs. 30/-for the child. But a Court cannot proceed on conjectures. Therefore, the maintenance allowance would have to be fixed on. the footing that the monthly income of the petitioner is Rs. 220/-. It appears that he has to help his people in his father's house. In those circumstances I would reduce the maintenance allowance of the wife from Rs. 70/- to Rs. 40/- per month and that of the child from Rs. 30 to Rs. 20. The order will take effect from the date on which the order was passed by the learned Magistrate viz., 19th May, 1964.
13. Subject to the modification in the quantum of allowance indicated above, the revisional petition is rejected and the Rule is discharged.