Sobhag Singh vs Ram Kunwar Bai

H.R. Krishnan, J.—The question in this application is whether a maintenance proceeding u/s 488 Criminal Procedure Code started by the wife before the Magistrate, should be stayed because the husband has initiated proceedings in the civil Court for divorce or judicial separation.

In this case, the husband''s suit for divorce had been dismissed and his appeal from that decree was pending when the wife filed her application before the Magistrate. The husband, who is the applicant here, prayed before the Magistrate that till disposal of that appeal, the proceedings should be stayed. The Magistrate refused, and the application in revision before the Sessions Judge for the same purpose has also been dismissed

The applicant''s emphasis is on the substantial identity of one of the facts in issue; in other words, he has raised the plea of the wife living in adultery, as a ground for divorce; the same, if found by the Magistrate, will disentitle her to maintenance. He his also pointed out the failure oh the part of the wife to make an application for interim maintenance u/s 24 or a regular claim for maintenance u/s 25 of the Hindu Marriage Act. But all this ignores the difference in the basic-principles of the appropriate sections in the Hindu Marriage Act on the one hand and the Criminal Procedure Code on the other. The former deal with the conjugal relationship and duties without any direct bearing on the public peace. Section 488 Criminal Procedure Code, on the other hand, is only indirectly concerned with these mutual rights and duties and is primarily a provision empowering the Magistrate to safeguard against crime committed by or in respect of a woman or child left uncared or Unprovided for by the man who should normally have looked after them. The emphasis before the Magistrate is on the urgent requirement in the interest of public peace, that no woman or child is left so helpless as to be tempted themselves to commit crime or to tempt others to commit crime in regard to them. In such a proceeding, society at large is immediately and directly concerned; and in that sense, the State as such is the real party though the proceedings are initiated by or on behalf of the woman or child concerned. Certainly, in the suits and proceedings under the Hindu Marriage Act, society is concerned in a general sense; but not with this directness. The disqualification of a woman for maintenance u/s 488 already living in adultery is easily understood, if we note that in that event the woman would have already gone so far that it is useless for the Magistrate to save her from crime or, may be is already living in a manner which normally may not tempt her to any other crime from which she could be saved giving her maintenance. A finding by the Magistrate that the woman is living in adultery, will not bind a civil Court in a divorce proceeding; but conversely, the decision in the divorce suit will certainly bind the Magistrate, because that Court is itself competent while allowing a decree of divorce to make proper orders in regard to maintenance. In effect, an order u/s 488 Criminal Procedure Code is only a provisional arrangement till disposal of the civil proceedings.

It is also clear that the maintenance if any, that a Magistrate may order u/s 488 Criminal Procedure Code, will be taken into account if and when the divorce Court passes any order in this regard whether u/s 24 or 25 of the Hindu Marriage Act. It is not a safe arguement to urge that the failure of the wife to move the civil Court under these Sections might disentitle her to maintenance u/s 488 Criminal Procedure Code. The nature of the proceedings is different. All that can be said is that when a final order is passed in the divorce proceeding the Magistrate should sue motu or on the invitation of one of the parties, but after hearing both, reconsider his order for maintenance Thus, there is really no case for stay of the proceedings u/s 488 Criminal Procedure Code till disposal of the appeal from the judgment of the civil Court refusing divorce.

The application is, therefore, dismissed summarily.