J.N. Bhat, J.
1. In my opinion the reference made by the learned Sessions Judge must he accepted.
2. The respondent. Mst Sara, brought an application under Section 488. Criminal P. C., against Rehman Mir her husband, alleging that he had neglected her for three years prior to the filing of the application. He was well-to-do and should be ordered to pay her maintenance at the rate of Rs. 60. In para 2 of the petition she has said that from the very date of the marriage the treatment of her husband with his wife was uncivilised and cruel. It would not be free from danger for the wife to live with her husband.
3. In reply the husband has stated in para 2 of his objections that he was prepared to maintain his wife. He had sent a number of respectable persons to persuade her to live with him and sent her notices also to that effect but she had refused because her father would not permit her to live with him.
4. The parties led evidence. The trial court of the Munsiff Sopore ordered maintenance at the rate of Rs. 40 a month.
5. A revision petition was presented before the Sessions Judge Baramulla who has made the recommendation that the order of maintenance passed by the Magistrate should be set aside, as the trial court had ignored the offer of the husband to keep the wife with him.
6. The trial court has written a detailed order and has opined that the offer of the husband to maintain his wife was not bona fide.
7. It has been argued before me that this is not a proper method of dealing with the case, or at any rate this is not a legal disposal of the matter. The proviso to Section 488(3) says that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such magistrate may consider any grounds of refusal stated by her. and make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Sub-section (4) of the same section lays down that 'No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.'
So it is obligatory in proceedings under Section 488, Criminal P.C., to consider the offer of the husband to maintain his wife on condition of her living with him. If she refuses to live with him, the magistrate has to consider the grounds of her refusal and has the power to hold that notwithstanding the offer of the husband to maintain his wife, if she lives with him. he can pass an order granting her maintenance. But at the same time if the wife without any sufficient reason refuses to live with her husband, the wife shall not be entitled to receive any allowance from her husband under Section 488. Criminal P.C. Normally every wife is supposed to live with her husband. If some wife does not choose or elects not to live with her husband, she has to show a sufficient reason to the satisfaction of the Magistrate for so doing.
But her choice in this matter is not the final word on the subject. She has to state the reasons why she is not prepared to live with the husband. The court has to consider the reasons after hearing both parties and see for itself whether the grounds pleaded by the wife are sufficient to allow her to refuse to return to her husband and claim maintenance from him. Otherwise any wedded wife can take it into her head to reject an offer of her husband to maintain her if she lives with him.
8. In this case the trial court has not given its attention to this aspect of the case. Merely the wife's mentioning in the application that the behaviour of the husband had been uncivilized and cruel towards her from the date of the marriage means nothing. She must give and state such facts as would make the court hold that it is not proper or safe for the wile to be directed to live with her husband,
9. The husband in this case has made a clear offer to maintain the wife if she lives with him. but nothing has been said by the wife either in the application or in her statement as to what are the reasons which make her refuse to go back to her husband, nor has any fact been brought out from the statement of the husband which would show that it will not be safe for the wife to live with him. In this way the proceedings are defective and the husband cannot be penalized first, to part with the company of his wife and then to pay maintenance to her because she does not want to live with him. The reference made by the learned Sessions Judge is therefore accepted. The case will go back to the trial court. This aspect of the matter will be inquired into by the trial court which will then decide the whole case afresh after such further evidence, if at all led by the parties, as will come on record.