(1.) In this Criminal Revision Petition by the husband, who was directed to pay a monthly maintenance at the rate of Rs. 20/- per mensem to his wife by the Sub Divisional Magistrate, Chengannur, the learned counsel of the petitioner challenges the order on the ground that the court below did not comply with the provisions of sub-s.(3) of S.488 Cr. P.C. The sub-s.(3) with its first proviso may be read as follows:
(2.) There is dispute whether the proviso under sub-s.(3) referred to above is a proviso to sub-s.(3) only or to sub-s.(1) of S.488. There is equally strong opposite view that it is a proviso to sub-s.(3) only and will come into play with an offer made after an order has been passed granting maintenance under sub-s.(1). The order for maintenance can be made only under sub-s.(1) of S.488 when two requirements had to be fulfilled, viz., that the husband in the case of a wife has sufficient means and yet neglects or refuses to maintain her. Once an order is passed under sub-s.(1), sub-s.(3) deals with the case when the husband comes forward to offer maintenance to his wife. It was then that the Trial Court has to consider if there are any just grounds for the wife to refuse to live with the husband. If just grounds are made out, the Magistrate may issue an order under sub-s.(3). But, if such grounds are not made out for the wife to live separately from the husband, the Magistrate in spite of the order under sub-s.(1) may pass an order disallowing the maintenance by execution of that order. Sub-s.(4) of S.488 can successfully be pressed into service when the husband offers to maintain his wife on condition of living with him before an order is passed under sub-s.(1). Sub-s.(4) says that no wife shall be entitled to receive an allowance from her husband under this section. So, it would be clear that sub-s.(4) governs the whole section including sub-s.(1). Hence no maintenance can be granted to a wife under sub-s.(1) if she is living in adultery or if without any sufficient reason she refuses to live with her husband, or if she and her husband are living separately by mutual consent. In the light of this sub-section, it was unnecessary for the Legislature to apply the first proviso to sub-s.(3) to sub-s.(1) also. Probably, this proviso was inserted in the section in order to give the husband one more opportunity to offer to maintain his wife on condition of her living with him. Whether in the instant case the proviso to sub-s.(3) goes with sub-s.(1) or sub-section, (3), it is clear that before an order is passed for maintenance in favour of the wife, it is incumbent upon the Trial Court to consider whether the offer made by the husband to the wife that she should live with him is bona fide or not. That appears to be the line of thought in, many rulings, one of which is reported in Bommareddi Venkattappa Reddy v. Bommareddi Laxmamma (1959 Madras Law Journal (Criminal) Vol. III page 549). The relevant portion of that ruling is as follows:
(3.) It is, therefore, necessary in the circumstances of this case to find whether there has been any such offer bona fide made by the petitioner to the respondent wife asking her to live with him. It is true that the court below did not consider the specific question as such, but the evidence has been adduced on either side keeping in mind the petitioner's offer to the respondent to live with him. Therefore, I do not find it necessary to send back the case for re-writing a judgment at the instance of the Trial Court. Form the evidence on record, I will consider whether the petitioner would have made any such bona fide offer to his wife as condition precedent for her maintenance.