Mangat Ram vs Shano Devi & Anr.

On an application filed by the respondents under Sec 488 Cr.P.C. the trial court of Chief Judicial Magistrate, Jammu, vide his order dated

23.12.1989, directed the payment of maintenance allowance to the respondents, the wife and child of the petitioner, @ Rs. 300 per month (Rs.

200 for wife and Rs. 100 for child). Aggrieved by the said order the petitioner herein filed a revision petition before the Second Addl. Sessions

Judge, Jammu, who, vide the order impugned in this petition, dismissed the same.

It is submitted that the orders of the courts below being contrary to law and facts are required to be set aside, It is further submitted that during the

pendency of the maintenance proceedings, a decree u/s 9 of the Hindu Marriage Act, was passed on the basis of a compromise between the

husband and wife, on 289.1988. It is contended that as a consequence of the decree for restitution of conjugal rights, the respondent is alleged to

have forgot and swept the bitterness of differences and the cause of action, if any, against the petitioner came to an end, The trial court committed

a mistake of law by not considering the fact of the decree of restitution of conjugal rights and the revisional court below returned a finding on this

behalf contrary to the settled law. It is contended that the decree of restitution of conjugal rights was acted upon and respondent No. I started

living with the petitioner without withdrawing the proceedings under Sec. 488 Cr. P. C. It is submitted that the respondentchild is also not entitled

to the maintenance as she hid been taken by the wife without the consent of the petitioner.

I have heard learned counsel for the petitioner and perused the record. No one has appeared for the respondents despite service.

From the record it appears that the trial court had not, in fact specifically considered the effect of decree for restitution of conjugal rights despite

the fact that the factor of passing of the said decree had been brought to its notice. The respondent had also admitted in her statement about the

passing of the decree and her living with the petitioner thereafter. However, the record of proceedings under the Hindu Marriage Act reveals that

the petition filed by the petitioner for restitution of conjugal rights was disposed of by holding, ""In view of the statements of the parties the petition

under Sec. 9 of the Hindu Marriage Act is decreed in accordance with the terms and conditions agreed to between the parties"". The respondent in

her statement recorded on 28.9.1988 had submitted that if the petitioner herein assures not to kilt her by sprinkling kerosene oil, pays her Rs. 400

per month as maintenance, does not beat her and the child and permits her to visit her parents, she had no objection to the restitution of conjugal

rights. She also agreed to withdraw the cases filed by her under Sections 107 and 488 Cr, P.C. The petitioner herein had also assured the

respondent of fulfilling the conditions specified by her.

Under proviso to subsec. (3) of Sec. 488 Cr. P.C., the magistrate trying an application for maintenance, is required to consider the offer made by

the husband to maintain his wife on the condition of her living with him and if she refuses to live with him such magistrate may in that event consider

any ground for refusal stated by her and make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing* Mere

passing of the decree of restitution o; conjugal rights cannot be termed to be a bona fide offer of the husband to keep the wife under his roof and

protection but is definitely a circumstance to be considered for the purposes of ascertaining the nature of the offer as to whether the same was

bona fide or intended only to frustrate the application for the grant of maintenance. It is also settled that the provisions of Sec. 488 Cr. P. C. are

not intended to be used as a measure of punishment but have been incorporated with the object of protecting the women from the apprehended

danger of vagrancy and starvation, It was held by Kerala High Court in 1978 Cr. L, J. (NOC) 232:

An order of restitution of conjugal rights by itself is not a ground for refusal of maintenance u/s 125 unless it is made out that the person in whose

favour it was made, was willing to discharge his obligations as husband and has not secured the order as an excuse to get rid of the wife in a

subsequent proceedings for divorce.

It has rightly been noted by the revisional court below that despite the passing of the decree for restitution of conjugal rights, the petitioner had not

taken any step to get the said decree executed to demonstrate his bona fide in leans of proviso to subsec. (3) of Sec. 488 Cr. P.C. The

respondent had never acted upon the terms of the compromise decree passed in the petition for restitution of conjugal rights as it is proved that she

did not withdraw the application filed by her under Sec. 488 Cr. P.C. The petitioner is his statement recorded in the trial court on 21.4.1989 had

refuted the allegations about the character and conduct of his wife despite the passing of the decree for restitution of conjugal rights which shows

that the filling of the said petition or its compromise was not bona fide. The parties are also shown to have compromised on account of the

intervention of the local panchayat but despite that the petitioner is alleged to have not maintained the respondent.

Learned counsel for the petitioner has relied up3n various judgments reported in AIR 1953 Ketch 21, 1978 Cr. L.J. (NOC) 4, 1976 Cr. LJ 93

and AIR 1956 HP M, to urge that men passing of the decree of restitution of conjugal rights was a complete bar for Court to grant relief of

maintenance : under Sec. 488 Cr. PC. The judgments relied are distinguishable and in the Sight of the observations made hereinabove are not

applicable in the instant case. The trial court appears to have also referred to the order passed by the 2nd Addl. Sessions Judge and after

appreciation of evidence, held, ""In these circumstances there can be no denial of the fact that the treatment of the respondent towards his wife,

petitioner No. 1, is cruel and as such she is entitled to claim separate residence and maintenance."" Similarly the revisional court vide the order

impugned in this petition, appreciated the evidence led in the case and came to the conclusion :

Unfounded and unauthorised allegation of unchastity in written statement itself amounts to cruelty and wife in the instant case has just and

reasonable cause to live separately. Looked into with this background, there is reason to believe that the husband who remained accusing his wife

as unchaste even after the passing of the decree of restitution of conjugal rights was not realty anxious to get back his wife and his attempt was

merely to create hurdles in the grant of maintenance allowance to his wife,

So far as respondent No. 2, the child of the parties, is concerned, it has been found that he is a minor and is admittedly living with his mother.

There could not be any objection to the grant of maintenance in his favour by both the courts below.

For what has been stated hereinbefore the revision petition which has not merit is dismissed but without any order as to costs. Record of the trial

court shall be returned back forthwith.

This also disposes of Cr. M.P. No. 154 of 1993.