Saleema vs Farooq Ahmad Sheikh

M. Yaqoob Mir, J.—Order dated 30.12.006 passed by Judicial Magistrate 1st Class (Sub Judge Bejibehara) is impugned. By medium of

this Revision petition reversal of same is sought.

Parties are married to each other. From the wedlock three children are born, who are in the custody of the respondent. Petitioner putting up in

her parental house, claimed to have been neglected by the respondent, which prompted her to initiate the proceedings in terms of Section-488

Cr.P.C. Learned Magistrate after conducting the full trial has dismissed the application for grant of maintenance, as according to Learned

Magistrate, the petitioner without any just cause has refused to live with the respondent.

Heard and considered. Appearing counsel for the petitioner projected that order granting maintenance was to be passed in accordance with

Sub Section-1 of Section-488 Cr.P.C. Then at the stage of enforcement question of refusal on the part of the petitioner to live with the respondent

could be considered an warranted in terms of the proviso to Sub Section-3 of Section-488 Cr.P.C. Order impugned as such has not been passed

in accordance with the law. Meeting this submission counsel for the otherside, while relying on the Judgment reported in 1981 Criminal Law

Journal 1898, submitted that proviso applies to whole of the Section.

The submission of the Learned Counsel for the petitioner is bereft of legal sanctity. If such submission is accepted, then the object of Section-

488 Cr.P.C. will get defeated and the proceeding will remain un-ending. It is fact that the respondent has moral as well as legal duty to maintain his

spouse. Petitioner, as a matter of course, cannot be permitted to be subjected to starvation, Sociological object of Section-488 Cr.P.C, has to be

given first preference. Respondent has social duty to discharge claim maintenance, but claim shall not appear as a measure of punishment.

The word neglect' as occurring in Sub Section-1 of Section-488 Cr.P.C means, that a person has been neglected without the fault of the person

claiming to be neglected. The word neglect has to be read in Jexta-position with the second proviso of Sub Section-3 and also with Sub Section-4

of Section-488 Cr.P.C. The wife is entitled to maintenance subject to satisfaction of three conditions;

I. She is unable to maintain herself.

II. She has just ground to refuse the offer of her husband to be maintained on conditions of living with him.

III. She does not without any sufficient reason refuse to live with her husband.

These three conditions are incorporated in Sub Section-1 (A), Proviso No. 2 to Sub Section- 3 and Sub Section-4 of Section-488 Cr.P.C are

inter-connected as such required to be considered together.

So far condition No. 1 is concerned, same is not required to be dealt with as the position of petitioner being unable to maintain herself loses

significance, in the light of the offer to maintain by the respondent.

So far conditions 2 and 3 are concerned, in this connection record perused. Respondent has made an offer to the petitioner right from the

beginning of the proceedings under Section-488 Cr.P.C, to live with him, which the petitioner has refused. Now the question is whether the refusal

on the part of the petitioner has any cause? My answer is m negative. In the statement recorded on 15-10-2005, in support of the complaint at the

stage of its presentation, the petitioner had claimed that she had been turned out from the home by the respondent and has also stated that his

brother and his family has turned her out from the respondent's home. Then in the preliminary statement recorded on 2.2.2006, she has stated that

she does not like to go to the house of the respondent as the respondent and his family members are drunkards. Then in her statement, recorded

on 7.8.2006, she has deposed that brother of the respondent had once naked her, domestic environment of the respondent is bad. She is not

ready to live in the house of the respondent. Even if respondent give anything in writing before the court, still she is not ready to live in the house of

the respondent.

Three contradictory statements recorded at three relevant stages of the proceedings, clearly show contradictory versions, which in turn inspire

confidence for drawing the inference that the petitioner has no cause to refuse the offer of the respondent, neither she has any sufficient reason to

refuse to live with her husband. As compared to her, respondent right from the very beginning of the proceedings in the trial court has been offering

the petitioner to come and live with him. The respondent has further deposed that in fact petitioner wanted respondent to desert his parents,

unmarried sister and unmarried brother and the petitioner wanted respondent to live separately somewhere in some other village. It is in the

backdrop of the said position, it can safely be concluded that the petitioner has no sufficient cause for refusing to live with her husband nor she has

any just ground for declining the offer of the respondent.

The offer of the respondent asking petitioner to live with him is not spontaneous but right from the very beginning of the proceedings the

respondent has come out with the offer, which the petitioner has refused.

Petitioner has even ignored her children, who admittedly, are living in the house of the respondent. The trial court rightly concluded after

appreciating the whole evidence of the record, that the petitioner is not entitled to claim maintenance from the respondent. Refusal of the petitioner

to live with her husband and then her refusal to the offer made/by the respondent without any just ground dis-entitles her from claiming the

maintenance.

The contention of the Learned Counsel that after passing order of maintenance, question of offer and refusal to live with the respondents could

be considered is only to be rejected because when order of maintenance is passed it has to be passed after keeping in view the entire scheme and

object of Section-488 Cr.P.C. Similar position of law had been projected before the Kerala High Court. The Judgment reported in 1981 Criminal

Law Journal 1898 Kerala High court has taken the view that the Proviso-2 to Sub Section-3 and Section-125(4) applies to whole of the Section.

In the reported Judgment it has been held:

As per the second proviso occurring below Sub-section (3) of Section 125, of the Code where the husband offers to maintain his wife on

condition of her living with him and she refuses to live with him the Magistrate may consider the grounds for 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. The proviso as we understand it, clearly

spells out that the burden is on the wife, to put forward grounds in support of her refusal and to satisfy the Magistrate that the grounds are just.

Failure on her part to do so will result in an adverse order against her under the section. If burden of proving ""just ground"" under this proviso rests

on the wife, it is not possible to hold that the burden of proving "" sufficient reason"" under Sub-section (4) of Section 125 of the Code rests on the

husband. There is no qualitative difference between the expression "" Just ground"" mentioned in the proviso and the expression "" sufficient reason

mentioned in Sub-section (4).

It is argued that the proviso applies only to the stage of enforcement contemplated in Sub-section (3) of an order of maintenance passed under

subsection (1) and therefore the burden of proof spelled out in the proviso cannot be applied in considering an offer made prior to the passing of

the maintenance order under Sub-section (1). Reported decisions of various High courts have taken conflicting views in this regard. Decisions in

Mtr. Roshan Bano v. Azim AIR 1943 Lah 59 : 44 Cri LJ 425. Ram Singh v. Mt. Rambai AIR 1943 Lah 223 : 44 Cri LJ802 Ramji Malviya Vs.

Smt. Munni Devi Malviya, , Iqbalunnisa Begum and Another Vs. Habib Pasha, and Mehrunnisa Vs. Noor Mohammad, :

Mehrunnisa Vs. Noor Mohammad, support this contention, while the decisions in Ram Khelawan Vs. State, , H. Syed Ahmad Vs. Naghath

Parveen Taj Begum, , Tejabai Vs. Shankarrao Baswanappa, , Ranjit Kaur Vs. Avtar Singh, , Govindram Narandas v. Ratanbai Nathuram AIR

1956 San W5 and Shambu Reddy v. Ghalamma AIR 966 Mys 311 : 1966 Cri LJ 291 took the contrary view. In Gopala Krishennan Nair v.

Thankamma 1970 KLT 403 Moidu J. took the view that the proviso governs the entire section. In Ammukutty Amma Ponnamma Vs. Narayana

Panikkar Neelakantan Nair, Isaac J. also had taken the same view.

While analyzing the provision of Section-488 Cr.P.C, which corresponds to Section-125 of the Central Act, in my view, the scheme of

Section-488 Cr.P.C, as a whole has to be considered on the touchstone of the sociological object. The proviso-2 to Sub Section-3 and Sub

Section-4 of Section 488 Cr.P.C, applies not only at the time of enforcement of payment of maintenance allowance allowed under Sub Section-1

but also applies even while passing or refusing the grant of maintenance under Sub Section-1 of Section 488 Cr.P.C.

If the grant of maintenance is allowed under Sub Section 1 but is not enforceable in view of the proviso 2 to Sub SecUon-3 and Sub Section-

4, then order under Sub Section-1 becomes illogical. So in essence when the material is brought on record, which does not satisfy the test of 2nd

proviso of Sub Section 3 or Sub Section 4 applicable to the petitioner to justify her refusal to the offer or show any sufficient cause for living away,

then order has to be passed while keeping all the situations in view as has rightly been done by the Learned Magistrate.

In the backdrop of the aforestated position of the law and fact, revision petition is found to be devoid of merit, as such is dismissed. Copy of

the order alongwith the subordinate court record be sent back forthwith.