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Bachai Kalwar Vs. Jamuna Kalwarin - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal339
AppellantBachai Kalwar
RespondentJamuna Kalwarin
Excerpt:
- .....wife. it appears that the petitioner is living with a mistress and that he refused to allow ids wife to live with him. she is perfectly willing to do so and she asks that she may be allowed to live, if not with her husband, at any rate in a house near his. the husband does not accede to this, but offers a two alternatives (1) to live with his brother in their native village at jaunpur, (2) to live with her mother at arsian. bo far as the living with his brother is concerned upon the facts placed before the magistrate the offer is clearly an unreason-aide one, for the wife alleges and the magistrate accepts her story that when she was previously living with his brother, she was ill-treated by him.2. the second alternative is also clearly unreasonable for it appears that the wife's.....
Judgment:

1. On the merits this Rule clearly cannot succeed. The Honorary Presidency Magistrate has directed the petitioner Bachai Kulwar to pay Rs. 50 a month for the maintenance of his wife. It appears that the petitioner is living with a mistress and that he refused to allow ids wife to live with him. She is perfectly willing to do so and she asks that she may be allowed to live, if not with her husband, at any rate in a house near his. The husband does not accede to this, but offers a two alternatives (1) to live with his brother in their native village at Jaunpur, (2) to live with her mother at Arsian. Bo far as the living with his brother is concerned upon the facts placed before the Magistrate the offer is clearly an unreason-aide one, for the wife alleges and the Magistrate accepts her story that when she was previously living with his brother, she was ill-treated by him.

2. The second alternative is also clearly unreasonable for it appears that the wife's mother lives the greater part of the year not in her native village at Arsian, but in Calcutta, where she is unable to have the daughter living with her. In the circumstances, the order of the Magistrate directing the accused to pay Rs. 50 a month for maintenance to his wife is undoubtedly a reasonable order.

3. So far as the amount is concerned the Magistrate has come to the conclusion upon the facts and evidence before him that the accused comes of a well-to-do family and that he can afford to pay this amount.

4. Then it is said that at any rate the matter must go back to the Magistrate as the accused has not been examined under the provisions of Section 342 of the Code of Criminal Procedure. It appears that-the accused as opposite party gave evidence in the proceedings on his own behalf on the 5th September of last year At that time the new Code of Criminal Procedure was in force and from Section 488 of the new Code, Sub-clause (7), providing that the accused may tender himself as a witness, is omitted. It is, therefore, said that the opposite party could not have given evidence in the proceedings as he was an accused person and was not an admissible witness in the case of this nature. It appears that in Sub-clauses (7) and (9) of the old Code reference was made to an opposite party in the proceedings under that section, as being the accused. But Sub-clause (7) has been omitted and under Sub-clause (9), the opposite party is no longer described as an accused, but as ' a person.' It may well be that the Legislature in making the amendment has intended that the opposite party in such proceedings should no longer be looked upon as an accused person and if this is so, there is no reason that he should not give evidence on his own behalf. Whether this is so or not we do not know and we do not think that it is necessary for us to decide this point in these proceedings because we think that having regard to the fact that the accused gave evidence on his own behalf in these proceedings it will be futile to direct that the matter should go back to the Magistrate in order that he may be examined under Section 342. Whether looked upon from this point of view or looked upon from the other point of view to which we have referred, it seems to us that there is nothing, in the point raised with regard to the examination under Section 342 and we accordingly discharge the Rule.


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