Govindram Narandas vs Ratanbal Nathuram

Shah, C.J.—This reference made by the Additional Sessions Judge, Porbandar, arises out of an application by the wife Ratanbal for maintenance u/s 488, Code of Criminal Procedure, against her husband Govindram Narandas. The parties were married about 30 years back and there were five sons and one daughter of the marriage, most of whom are now major. It appears the husband, hereinafter called the applicant, developed illicit intimacy with a rich widow who lived in the same house and this was with the wife''s (opponent''s) full concurrence and connivance and both of them sponged on the-widow till they sucked her dry.

The opponent wished the applicant not to continue this liaison with the widow which was to bring them no profit but the applicant would not leave her in the lurch and helped her in small ways In her impoverished cays. The opponent then left the husband and filed an application for maintenance u/s 488 Code of Criminal Procedure, in the former Junagadh State Court, being Application No. 5 of St. 1997.

This application was compromised and a regular deed of compromise dated 12-5-41 was passed between the parties by which she was to live with the husband, but in case they disagreed she could stay separately and in that event the husband was to give her Rs. 17-8-0 per month for maintenance. She went to live with the husband but soon left him and filed a second application for maintenance, being Application No. 1 of St. 1998.

This application was dismissed by the Magistrate and an appeal filed by her was also dismissed on 7-9-42. She continued to live separate from the husband thereafter. The husband had served her with a notice calling upon her to return to him but she did not comply with his request and after about eleven years, in July,. 1953, she applied to the Magistrate of Kutiyana for maintenance on the ground of cruelty as also on the ground that the husband had married a second wife in the meantime.

The allegation of cruelty was denied by the husband, and though he admitted that he had married a second wife he urged that the orders passed in the previous applications operated as resjudicata and that in any event he having usurped to eave maintenance to the wife by a regular deed her remedy was to enforce the compromise, and as there was no refusal or negligence on his part a fresh application was not maintainable, The learned Magistrate rejected these contentions and held that by reason of the present applicant''s .second marriocie the wife could apply for maintenance notwithstanding the original compromise. The husband applied in revision to the Additional Sessions Judge, who found that although the previous order did not operate as resjudicata they were nevertheless entitled to consideration by the Magistrate. He took the view that the husband having agreed to maintain her on her living separate it could not be said that he had neglected or'' refused to maintain the wife and the wife was not entitled to claim separate maintenance on the sole ground of the husband taking a second wife. The learned Judge, therefore, made the present reference recommending that the wife application may be dismissed and she may be referred to take her remedy under civil law.

This reference was heard by Baxi, J. but In view of a decision of this Court in Criminal Ref. No. 17 of 1951 he thought it proper to refer the matter to a Division Bench and that is how the matter has come up before us.

The allegation of cruelty was dropped by the opponent in the Magistrate''s Court and the sole ground on which the application was pressed was the second marriage of the applicant. Therefore the question that falls for consideration now is whether by reason of the second marriage the opponent should be awarded maintenance regardless of the previous compromise to pay her main -"tenancies in case she wished to live separate from the husband. It is admitted that no new ground except'' the fact of the second marriage has transpired and no question of increase in the maintenance is at all involved in this case.

Now the scheme of Section 483, Code of Criminal Procedure, in that if the husband having sufficient means either neglects or refuses to maintain the wife, the wife can claim maintenance. Sub-section (3) of the section provides that where an order for maintenance in made by the Magistrate and the husband fails without sufficient cause to comply with the order, the Magistrate may enforce the order in the manner stated in the Sub-section.

Then follows the proviso which says that if the husband offers to maintain the wife on condition of her living with him and she refuses to live with him, the Magistrate may consider the grounds of refusal stated by her and he may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

The clause occurring thereafter has been added by Section 2, Criminal Procedure (Amendment) Act, 9 of 1949, and it says that if a husband has contracted a marriage with Anr. wife or keeps a mistress it shall be considered to be just ground for his wife''s refusal to live with him. it was urged that the first proviso is a proviso to Sub-section (3) of Section 488 and that the husband''s offer envisaged by that proviso is at the stage when the Magistrate proceeds to enforce the order of maintenance (made under Sub-section (D) on the husband''s failure to comply with it, and it is then that the grounds of the wife''s refusal to live with him are to be considered, meaning thereby that in case the husband offers to maintain the wife on condition of her living with him and the wife refuses without justifiable ground the Magistrate may refuse to enforce '' the order of maintenance.

There is no doubt authority for this proposition In - ''Mt. RoshanBano v. Azlm'', AIR 1943 Lah 59 (v. 30) ''A) and - ''Ram Singh v. Mt. Ram Bai, AIR 1943 Lah 223 ( v. 30) (B) which follows - ''Mt. Roshan Bano''s case (A). This view is taken on the strength of the location of the first proviso and of the second proviso relating to Sub-section (3) alone.

With all respect, I do not agree, that the mere location of the first proviso or the fact that the second proviso relates to Sub-section (3) is a good ground for holding that the first proviso refers to Sub-section (3) only.

As it is, the word ''section'' is used in the said proviso and it is more in consonance with the scheme of the section itself to hold that before '' king an order of maintenance Under Sub-section (1) Court is required topsider the husband''s "too maintain the waif she lives with him, With and the which? that refusal is based.

If the ''husband''s offer- is '' bona fide and. genuine and if there are no justifiable grounds for the wife''s refusal then the Court may not award her any maintenance. Even after the order of maintenance law node under Sub-section (1), if the hit bund makes a bona fold offer and the wile a to live with him without justifiable grounds, the Magistrate may not enforce the order as required by Sub-section (3).

There are several decisions of other Court in support of the view that the for it proviso is also a proviso to Sub-section (1), which moans that the husband''s offer to maintain the wife on condition of her living with him has to be considered by the Magistrate before awarding maintenance. (See - ''Ma Ku V. Poeflw'', 9 Cfi 2 (31) (LB)(O)

In - ''Dinsab Kasim;ab v. Mahammad Hus-saen'', AIR 1945 Bom 39 (393) ( v. 32) (D), Hliliovig thequestion it issue was sightly different. it win ''still held that having regard to the proviso under Sub-section (3) a Magistrate from whom a well seeks an order of maintenance against her husband power to see if there arc sufficient reason for her living separate from him, which in other words mean that the proviso has to be considered at the time of making an order under Sub-section (l).

In cases where the wife has claimed inmate nonce on the sole ground of the husband martini a second wife, it has been taken as implicit that the first proviso has reference to Sub-section (1) and it is only because of it that the Courts have proceeded to treat the wife''s refusal to live with the husband as "justified on the ground of the Mndu second marriage. (See - ''Gunnl v. Babu Lal, AIR 1951 AP 131 ( v. 39) (E>; ''Rajeswariamma v. K. M. Vmvnnuth'', 10:AIR 1951 Mys 31 (AIK v. 41) (F); - ''Senapathl Mudaliar v. Delvaimi Arnmiil, J:)W) AIR Mad. 357 (AIR v. 37) (G) and - Smt. Maiki Vs. Hemraj, .

In fact it is held in these cases that the fact of the husband marrying n second wife is by itself sufficient to entitle the first wife to separate maintenance, but with this aspect of the junction I will deal presently. The words "and may an order under this section" occurring in the first proviso suggest that the proviso refers to Sub-section (1) M well and this view is supported by the above quoted decisions.

Therefore at the stage of making in order of maintenance the Magistrate is required to cannier the husband''s offer to maintain the wife on condition of her living with him, and along with it to also consider the grounds of the wife''s refusal. II the husband has contracted a marriage with Anr. wife then that fact is a sufficient justification for the wife''s refusal and the husband''s offer will not matter. She will be entitled to refuse to live with him because of the fact of the second marriage and the husband will be bound to maintain her separately.

The question which then crises is whether Where the husband has married again the tact of the second marriage itself is sufficient to invest the Magistrate with the jurisdiction to award maintenance, or whether even in such a case initial neglect or refusal of the husband has to be proved.

Theoretically speaking an initial neglect of w fusel by the husband is no doubt necessary if order that the Magistrate can entertain the wile application for maintenance, but in practice real difficulty will be felt because the first wife will be justified in living away from the husband and If the husband does hot maintain her separately the his failure will amount to neglect or refusal ''entitling Therefore to-effect the fact of the husband marrying a second wife entitles "the; first wife to maintenance. Tub is in accord with the view taken in AIR 1962 Ker 131 (AIR v. 39) (E); AIR 1954 Karn 31 ( v. 41)

Therefore by reason of the applicant''s second marriage the opponent would be justified in living separate, and if the applicant does not maintain her then that would amount to his neglect or refusal entitling her to an order of maintenance, from the Court. But the facts here are sufficient to take the case cut of the ambit of the above rule. There is already a compromise between I the purities providing for separate maintenance in case the wile and husband did not agree and she I wished to live separate from him. That comprojnnse is binding on both the parts whatever may be the reason for her living separate:

As it is, after the compromise She lived only for a law days with the husband and, then left him voluntarily. Since then she has lived separate for about eleven or twelve years. It may be, she can Live separate from the husband on the latter''s ''taking; a second wife; all the same her remedy is !to enforce the compromise which is subsisting and ''she cannot ignore it and insist on the husband paying her maintenance otherwise than in pursuance of the compromise.

If she herself does not care to ask for the main-tenanted provided for by the compromise and ignores the compromise altogether, the situation is of her own choosing and not because of the husband in neglect or refusal. Her obvious remedy is to enforce the compromise in a civil Court and an application u/s 488, Code of Criminal Procedure should not, be entertained. (See - ''Budhu Rama v. Khem Devi'', AIR 1926 Lah. 469 ( v. 13) (I) and - ''Sham Singh v. Mt Hakam Devi'', AIR 1930 Lah. 524 ( v. 17) (J). We therefore accept the reference, set aside the order of the learned Magistrate and dismiss the opponent''s application for maintenance leaving her to check her remedy In a Civil Court, if so advised.

Baxi, J.

I agree.