Sri Balaji Padhy vs Smt. Kamini Padhy

P.K. Mohanti, J.—This criminal revision has been preferred against an order u/s 488(1), Code of Criminal Procedure directing the Petitioner to pay a monthly maintenance of Rs. 150/- to the opposite party.

The case of the opposite party was that she married the Petitioner on 12-7-1967 and after performance of the nuptial ceremony on 15-7-1967 they lived together as husband and wife at the house of the Petitioner. During her stay there the Petitioner''s step-mother, used to ill-treat her. On 3-12-1967 the opp. party had an abortion. At the request of the Petitioner the opposite party was brought to Nowrangpur on 5-12-1967 and was admitted to the Mission Hospital where she was treated from 6-12-1967 till 12-12-1907. The Petitioner promissed to take her back to his house on an auspicious day, but did not turn up. Her father wrote letter to the Petitioner to take her back to his house, but there was no response from the Petitioner. Since then the Petitioner neglected her and refused to provide for her maintenance. Hence the opposite party filed the petition u/s 488, Code of Criminal Procedure on 10-7-1971 claiming maintenance at the rate of Rs. 400/- per month.

The Petitioner filed counter admitting the marriage, but denying the above allegations. His contention was that since the date of performance of the nuptial ceremony the opposite party did not allow co-habitation on some pretext or other complaining always of ill-health. On 2-12-1967 she gave birth to a fully grown up child which did not survive. On 5-12-1967 during the absence of the Petitioner and his father, the opposite party left the house for Nowrangpur and since then she has not returned to his house despite repeated requests. It was alleged that the opposite party had conceived otherwise then through her relationship with the Petitioner and when the matter came to light she deserted the Petitioner with the intention of severing the mental tie for ever. So the Petitioner filed Title Suit No. 7 of 1972 in the Court of the Subordinate Judge, Jeypore for judicial separation.

Both parties led evidence in support of their respective contentions and on a consideration of the same the learned Magistrate came to the findings (i) that the opposite party had an abortion on 3-12-1967 and that she had conceived through the Petitioner ; (ii) that the allegation of the Petitioner that the opposite party had given birth to a fully grown up child on 3-12-1967 was false ;(iii) that there was a deliberate attribution of immorality to the wife which amounted to legal cruelty entitling the wife to live separately and claim maintenance; (iv) that the opposite party has been subjected to ill-treatment by the family members of the Petitioner; and (v) that the Petitioner had not taken any steps to maintain the opposite party and as such the opposite party had made out a case of neglect. Upon these findings the learned Magistrate directed the Petitioner to pay a sum of Rs. 150/- per month towards the maintenance of the opposite party.

On a review of the evidence on record, I see no reason to interfere with the above findings of fact. Considering the status of the parties and the financial capacity of the Petitioner, the quantum of monthly maintenance fixed by the learned Magistrate cannot also be said to be excessive.

The only point which was seriously agitated is that during the pendency of this criminal revision the Petitioner has obtained on 30-9-1974 a decree for judicial separation against the opposite party on the ground of desertion which implies that the opposite party has no reasonable ground not to live with her husband and in view of Sub-section (4) of Section 488 she is not entitled to maintenance. Reliance is placed on a Single Bench decision reported in Baldev Raj Vs. Pushpa Rani, , wherein it has been held that if a decree for judicial separation has been passed against the wife, it would imply that the wife has no reasonable ground for not living with the husband and in such a case Sub-section (4) of Section 488 of the Code of Criminal Procedure would come into operation and the wife would not be entitled to maintenance.

The Code of Criminal Procedure nowhere provides that a decree for judicial separation would operate as a bar to claim maintenance u/s 488 of the Code. An order for maintenance can be made under Sub-section (1) of Section 488 when two requirements are fulfilled viz. that the husband in the case of a wife has sufficient means and yet neglects or refuses to maintain her. Sub-section (4) of Section 488 says that no wife shall be entitled to receive an allowance from her husband if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

It contended on behalf of the opposite party that Sub-section (4) of Section 488 relates to the enforcement of the order for maintenance and does not govern Sub-section (1) of that section. Reliance for this view is placed on a decision of this Court in Donardhan Dondasena v. Smt. Tulusa Devi 37 (1971) C.L.T. 954. While interpreting Sub-sections (4) and (5) of Section 488, Code of Criminal Procedure, B.C. Das, J. observed as under:

The language of Sub-sections (4) and (5) of Section 488 Code of Criminal Procedure makes it sufficiently clear that their application can arise only after an order under Sub-section (1) has been made. The former Sub-section refers to the right ''to receive an allowance'' and the letter to the cancellation of the order; the right to ''receive an allowance'' can arise only after an order is made under Sub-section (1) and not merely on the existence of the primary right to be maintained.

This view appears to be more in accordance with the scheme and object of Section 488, Code of Criminal Procedure and I am in respectful agreement with the same.

It has been brought to my notice that against the decree for judicial separation the opposite party has preferred First Appeal No. 10 of 1975 which is now sub-judice in this Court. Until the appeal is disposed of, the decree of the trial Court cannot be deemed to be final. As the decree has not become final in view of the appeal pending against it, the Magistrate cannot take action u/s 489(2) Code of Criminal Procedure at this stage. If the decree is confirmed in appeal, the Petitioner may approach the leaned Magistrate to cancel or very the order of maintenance in accordance with the provisions of Section 489(2) Code of Criminal Procedure. It is then only that the-Magistrate will consider the impact of the decree on the order of maintenance.

Subject to the above observations, the criminal revision is dismissed.