Panchu Gopal Modak vs Dolly Modak

P.N. Mookerjee, J.—This is the husband''s Rule against an order for maintenance, passed by the learned Chief Presidency Magistrate, Clacutta, u/s 488 of the Code of Criminal Procedure. The order was passed on the wife''s application and the learned Magistrate has directed the present petitioner (husband) to pay a monthly allowance of Rs. 25 each for maintenance of the wife and her two daughters with effect from June, 1954. Against this order, the present Rule was obtained by the husband on August 9, 1954. Chunder, J., issued the Rule only on Ground No. 1, which runs as follows:

For that the learned Magistrate had no jurisdiction to entertain the proceeding and the order is void.

I, however, gave leave to Mr. Dutta to argue the case as an open Rule and to urge any point which appeared to him to have substance in it. Pursuant to this leave, Mr. Dutta raised three further contentions. He urged that there was no finding in the learned Magistrate''s judgment as to "neglect or refusal to maintain" the wife and the daughters and in the absence of such a finding no order for maintenance could be made u/s 488 of the Code. He urged further that, on the materials before the Court, no case of "neglect or refusal" had been proved and he strongly criticised the view of the learned Magistrate that the existence of a second wife was by itself sufficient to entitle the applicant wife to an order u/s 488 of the Code. Mr. Dutta also contended that the husband petitioner, as the father of the two minor daughters, was entitled to their custody and the mother opposite party could not refuse to allow them to live with him and claim maintenance for them on the plea that they were and would be living with her. In the circumstances of this case. I have also thought it proper to consider the question of the quantum of maintenance which is challenged in Ground No. V of the petition of motion.

From the admissions of the parties and the evidence, adduced in the case, certain facts emerge which may safely be taken to have been fully established. These facts are as follows:

(1) That the parties were duly married to each other several years back and they have two daughters, who are admittedly minors, by such marriage.

(2) That, some years later, the petitioner husband brought in the house another lady who, according to him, was his married wife but, according to the opposite party (wife), his mistress. The actual status of this lady is not, however, of much importance for our present purpose.

(3) That the opposite party (wife) left the petitioner''s house with her two children (daughters), primarily because of the presence of the other lady, referred to above, and the petitioner (husband) refused to give her separate maintenance except, possibly, shortly before the institution of the present proceedings, but this offer does not seem to be bona fide and his money order was quite properly refused by the applicant wife.

The specific allegations of cruelty and ill-treatment made by the opposite party, do not however, appear to have been sufficiently proved, nor does the husband''s allegation that the wife surreptitiously left his place after misappropriating his money appear to be true or worthy of much credence.

(4) That the petitioner has no place of residence in Calcutta and the parties last resided together at the petitioner''s house at Agarpara, P.S. Khardah, within the jurisdiction of the Barrackpore Court, and,

(5) That the petitioner carries on the business of a clearing agent under the name and style of "P.G. Modak & Sons", having office in the shape of ''two desks'' at the Customs Office (Custom House), at 15, Strand Road, Calcutta. In the light of the above facts, I have to examine Mr. Dutt''s contentions and to decide whether the present Rule should be allowed to succeed on any of them.

On the question of jurisdiction, I am inclined to hold that the word "is" in the phrase "resides or is" in section 488 of the Code of Criminal Procedure is of much wider import than residence, permanent or temporary, and it is comprehensive enough to include the regular place of business of the party concerned or the place, where he regularly works for gain and it seems to me that the view of the learned Chief Presidency Magistrate that the fact that the husband carries on business or works for gain at No. 15, Strand Road, within the Presidency town of Calcutta, which is admittedly within the local limits of his jurisdiction is sufficient to give him jurisdiction to entertain and determine and adjudicate upon the wife''s application u/s 488 of the Code of Criminal Procedure is correct. A similar view was expressed by Edgley, J., in the case of Sm. Indubala Devi Vs. Satchid Prosad, , and, as at present advised I am disposed to agree with that learned Judge. The word ''is'' as I have already said, is of very large import and, when the Legislature has used it in addition to the word "reside" it cannot be ignored. To reject it as redundant would be against accepted canons of statutory construction. It has, thus, to be given some meaning and, when we remember that a man is expected to be found on any working day at his regular place of work or business, it will not be unreasonable to hold that he "is" at that place for purposes and within the meaning of the section which uses the phrase "resides or is". Generally speaking, the word "reside" has a (strict and technical meaning, having reference to the place of dwelling or where the person lives and sleeps and, although sometimes it may have a wider connotation and may include reference to places where a person, stays only during particular hours of the day, it is not usually employed in that sense. The word "is", however, literally connotes reference to all places where a person can be found and it may legitimately be construed to have reference to all places (including places of business) where the person stays or can be found during particular hours of the day, unless such construction is expressly or impliedly excluded. When, therefore, the statute uses the words "resides or is" it is fair to hold that reference was intended to the person''s usual or regular place of work or business as well. The use of the word "is" was obviously for the purpose of enlarging the scope of the section and removing the ambiguity in that behalf which might otherwise have arisen from the single word "reside". Reference may in this connection be made to Stroud''s Judicial Dictionary, Third Edition (1952), Vol. 1, where, at page 270, the learned author says that the word "be" is of wider import than "reside" and refers to the case of Attorney General v. Mc Lean (2) (1863) 8 L.T. 113. I need only add that the observations of Martin, B., in particular, at page 117 of the Report, strongly support the suggested wider construction. I hold, therefore, that the phrase "resides or is" in section 488 of the Code of Criminal Procedure is wide enough to include reference to the person''s regular place of business or the place, where he usually works for gain, and the learned Chief Presidency Magistrate was right in entertaining the wife''s application in the present case.

Even otherwise, the Rule cannot succeed on this ground. Assuming that the learned Chief Presidency Magistrate had no local or territorial jurisdiction to entertain the present case, the defect, if any, would be curable u/s 531 of the Code (vide in this connection Sitaram Kalwar v. Sukla Kalwarin (3) (59 C.L.J. 205), when the husband petitioner does not appear to have been prejudiced by the learned Chief Presidency Magistrate''s assumption of jurisdiction in this case. I, therefore, reject Mr. Dutta''s first contention.

Mr. Dutta''s second and third contentions which relate to the question of neglect or refusal to maintain may be considered together. The parties are Hindus and there is no dispute that the husband has brought into the house another lady who is either his married wife or his mistress. Whatever the status of this lady, her introduction into the dwelling house entitled the wife opposite party to claim separate maintenance and residence u/s 2 of the Hindu Married Women''s Right to Separate Residence and Maintenance Act (Act XIX of 1946) and, if, in these circumstances, the wife refused to live with the husband and the other lady and claims separate maintenance and the husband refuses or fails to provide for it, there is sufficient "neglect or refusal to maintain" on the part of the husband within the meaning of section 488(1) of the Code of Criminal Procedure. My attention was drawn by Mr. Dutta to the fact that the amendment which the Legislature made in section 488 of the Code of Criminal Procedure in 1949, some years after the enactment of the above legislation, relating to Hindu Law, was only in the proviso part of sub-section (3) of section 488 and the other parts of this section including sub-section (1), which is the main or the charging section, were left untouched, and it was argued therefrom that the clear intention was that the new enactment (the Hindu Married Women''s Right to Separate Residence and Maintenance Act XIX of 1946) would not be relevant for purpose of, and would not have any effect on, the law, embodied in section 488(1) of the Code of Criminal Procedure, and would apply in relation to that section (sec. 488) only to the extent, indicated in the new amended or added proviso to sub-section (3). In other words, the argument was that, even where the parties were Hindus, as in the present case, the husband would not be liable to an order for maintenance u/s 488 of the Code of Criminal Procedure, unless "neglect or refusal to maintain", as contemplated by sub-section (1) in the light of the law, as it stood prior to the introduction of the said Act XIX of 1946, was made out, and this latter statute would not be a relevant consideration for purposes of sub-section (1) and it was only, when the maintenance order, properly passed under sub-section (1), as thus construed, was sought to be enforced and it was met by the husband''s offer to maintain the wife which was refused by the latter, then and then alone, consideration under the 1946 statute,--and that, again, only to the extent, indicated by the new legislative addition to the first proviso to section 488(3) in 1949.-- would become relevant. In support of this contention, Mr. Dutta referred me to the decision of Debabrata Mookerjee, J., in the case of Bankim Chandra Saha v. Kironbala Saha (4) (Criminal Revision Case Nos. 766 and 864 of 1953, decided on January 11, 1954).

Having given the matter my best consideration, I am unable to accept Mr. Dutt''s contention. Since the introduction of the Hindu Married Women''s Right to Separate Residence and Maintenance Act, XIX of 1946, a Hindu wife can, u/s 2 of that statute, and, subject only to the proviso to that section, refuse, as a matter of right, to live with the husband and claim separate residence and maintenance from her husband, "if he marries again or keeps a concubine in the house or habitually resides with the concubine". In such cases, the husband would be bound in law to give the wife separate maintenance and failure or refusal on his part to do so would amount to "neglect or refusal to maintain" within the meaning of section 488 of the Code. The applicant wife, in such cases, would be entitled to maintenance unless the Magistrate thinks otherwise in the proper exercise of his discretion under the said section 488. The relevant sub-section (1) uses the word "may" and thus leaves it to the judicial discretion of the Court, even where the requisite "neglect or refusal" is proved, to allow or disallow the claim for maintenance allowance and that is a sufficient check, in my opinion, against any hardship or injustice which may otherwise arise from the other terms of this sub-section.

In taking the above view, I have not overlooked that the only amendment which was made in section 488 in 1949, after the amendment of the Hindu Married Women''s Right to Separate Residence and Maintenance Act (Act XIX of 1946), was in the first proviso to sub-section (3) of that section and no change was made in subsection (1). That, however, does not, in my opinion, present any difficulty or lead to any contrary conclusion. Even prior to the amendment, it was the universally accepted position that, where the wife had any justifying cause to live apart from the husband, the latter''s failure or refusal to give her separate maintenance was tantamount to "neglect or refusal to maintain", as contemplated in section 488(1) of the Code. Clearly also, any circumstances which would justify the wife to live apart from the husband,--and, indeed, no other--would ordinarily be a "just ground" for the wife''s refusal to live with him under the first proviso to sub-section (3), although the converse may not be true when this proviso includes special grounds, expressly limited to it alone. If, again, we examine the grounds, given in section 2 of the Hindu Married Women''s Right to Separate Residence and Maintenance Act (Act XIX of 1946), we may safely hold that, except grounds (4) and (6) which relate to "another marriage" and the "keeping of a mistress or concubine", all the other grounds are and always were good and valid grounds for the wife''s refusal to live with the husband. In this context, there would have been no necessity for any amendment whatsoever even in the first proviso to sub-section (3) of section 488 of the Code, but for certain decisions which held that the wife could not justly refuse to live apart even where the husband "keeps a mistress", (vide in this connection the statement of objects and reasons of the 1949 amendment), and so there is nothing surprising that the only amendment to section 488 of the Code of Criminal Procedure which was thought necessary by the Legislature was what was made by it, namely, in the first proviso to sub-section (3). That amendment had the effect of making the husband''s "marriage with another wife" or his "keeping a mistress" "just ground" for the wife''s "refusal to live with him" and, being a just ground for such refusal, it would entitle her to reject the husband''s offer under the said proviso, and, if, under the personal law of the parties, this was also a ground entitling the wife to live apart, it would, in my opinion, be quite relevant for purpose of sub-section (1) also. It may be that the amendment of sub-section (3) is more comprehensive or the scope of the proviso has been made wider in that all aggrieved wives.--whatever their personal law--may avail its benefit even though they may not succeed on that ground under sub-section (i), and, even in regard to Hindu wives, the added "just grounds" in section 488(3) of the Criminal Procedure Code appear, prima facie at least, to be more drastic and liberal than the change in their personal law, introduced by Act XIX of 1946 [cf the language of the Code of Criminal Procedure Amendment Act (Act XIX of 1949) and sub-sections (4) and (6) of section 2 of Act XIX of 1946], but there is little justification for holding that the personal law of the parties should not be taken into consideration in deciding the question of the husband''s "neglect or refusal to maintain the wife". This personal law used always to be taken into consideration for such purposes prior to the amendment, and I would not be prepared to read any change in this respect by the introduction of the amendment of 1949. It would, indeed, be paradoxical if the substantive (personal) law permits the wife to live apart from the husband under certain circumstances and, at the same time, the Code permits the courts to hold that the husband''s refusal or neglect to maintain the wife, while she is so living apart, would not be "refusal or neglect to maintain the wife" under sub-section (1) of section 488 of the Code, thus virtually compelling the unfortunate wife to come back to the husband for the sake of her very life and existence. I hold, therefore, that, under the law, as it stands at present, the husband''s subsequent marriage or his "keeping a mistress or concubine in the house" would entitle the wife to live apart and claim maintenance, so far at least as Hindu wives are concerned, and the husband''s failure or refusal in such circumstances, to provide the wife with separate maintenance would amount to "neglect or refusal to maintain" under sub-section (1) and would thus be relevant not only for purpose of the first proviso to subsection (3), but also for purposes of the sub-section (1), notwithstanding the fact that the actual amendment of 1949, was made only in sub-section (3).

The same view has been taken in several cases in different High Courts; e.g., Bayanna Vs. Devamma, , and Gunni v. Babu Lal, (6) ( AIR 1952 M.B. 131); See also in this connection Smt. Maiki Vs. Hemraj, ; B. Rajeswariamma v. K.M. Viswanath, (8) ( AIR 1954 Mys 31); Sm. Banarsi Bai v. Ghisoolal, (9) (A.I.R. 1955 Ajmer 8); and Nirmal Bai v. Babanrao, (10) [A.I.R. 1955 N.U.C. 39 (M.B.)], and the only direct decision to the contrary is to be found in the AIR 1953 133 (Nagpur) , where Hemeon, J., laid undue emphasis on the difference in nature and scope of a claim for maintenance under Civil Law and the Criminal Law. In my opinion, however, that distinction was carried too far and, with the utmost respect to the learned Judge, I am unable to agree with his extreme view on the point. Although it is quite true that maintenance claims u/s 488 of the Code of Criminal Procedure stand, to some extent, on a different footing from the personal law of the parties in that such claims may succeed under that section, although personal law may not afford any relief to the aggrieved party in a particular case, I do not think consideration of personal law for purposes of finding "neglect or refusal to maintain" under sub-section (1) is excluded by either the language or the scheme, purpose or object of the statute. I do not also agree with the very wide obiter dictum of Debabrata Mookerjee, J., in the case of Bankim Chandra Saha v. Kironbala Saha. (4) (Criminal Revision Cases Nos. 766 and 864 of 1953), strongly relied on by Mr. Dutta, that the Hindu Married Women''s Right to Separate Residence and Maintenance Act (Act XIX of 1946), would not be a relevant consideration under sub-section (1) of section 488 of the Code of Criminal Procedure, even when the applicant is a Hindu wife, and that the husband''s second marriage or his keeping a mistress or concubine would only be relevant for purposes of the first proviso to sub-section (3), where alone the express amendment, making those facts or events just grounds for the wife''s refusal to live with the husband at the stage contemplated by that proviso, has been made. I have already given sufficient reasons for my view, and I would not pursue the matter further beyond stating,--with the utmost respect to my learned brother (Debabrata Mookerjee, J.),--that before him the full implications of the relevant change in Hindu Law do not appear to have been placed or argued. I may also note in passing that the observations of Rama-swami, J., in the recent Madras case of M. Magendramma v. M. Ramakotayya (12) [A.I.R. 1954 Mad. 713 at page 719 (Col. 1)] of the report, while explaining the old Madras decision (13) (I.L.R. 7 Mad. 187), which was a case u/s 488 of the Code of Criminal Procedure long before the passing of the relevant 1946 Act, really affect the present question. Those observations were clearly incidental in character and I would not be prepared to give them preference over the direct decision of the same High Court (5) ( Bayanna Vs. Devamma, ), to which reference has been made at the beginning of this paragraph.

As to the children, the position seems to be that they are minor girls actually living with their mother. The father may have the right to get their custody under an appropriate order of the Civil Court, but, so long as they live with the mother, they have to be maintained and the father''s refusal or neglect to maintain them, while they are so living with the mother, would entitle them to allowance under subsection (1) of section 488 of the Code of Criminal Procedure unless there is ground for refusing it in the exercise of the Court''s discretion under the said sub-section. In the present case, there is no such ground for disallowing this claim for maintenance and, accordingly, the petitioner''s fourth ground in support of the Rule must also fail. 1 may refer in this connection to the cases reported in (14) (A.I.R. 1928 Bom. 118) (In re. Bai Manek--in re. Chimanlal Somchand Shah); (15) (A.I.R. 1941 Bom. 267) (Ebrahim Mohammed v. Khurshedbai Ebrahim), (16) (A.I.R. 1952 Hyd. 97) (Muzaffarrudin v. Hajira Begum) and (17) (A.I.R. 1954 T.C. 225) (Kochukrishnan Asan v. Rajan), but, even apart from them, the legal position seems to be as I have explained above. Any other view may be fraught with the consequence of defeating one of the principal objects and the underlying principle of section 488 of the Code of Criminal Procedure and may tend to aggravate the distress which it was meant to prevent, or, at any rate, to ameliorate That would not be a just or proper construction of the statute, and I am not inclined--and I do not feel persuaded--to accept it.

On the question of the quantum of maintenance, the materials on record do not justify any interference with the learned Magistrate''s finding that the husband''s income at the relevant date was about Rs. 500 per month and the allowance to the wife and the children should be fixed at the rate of Rs. 25 each per month, particularly when it is open to the petitioner husband to claim relief on this point before the learned Magistrate under subsection (9) of section 488, if circumstances change or if they have already changed in the meantime. This ground also in support of the Rule must, therefore, fail. In the result, this Rule is discharged.