GANI ALI NALYA Vs. HAVABAI GANI AND ANOTHER

JUDGEMENT

(1.) Whether the learned Magistrate is bound to hold inquiry in every case when a person offers to maintain his wife on condition of her living with him as par the second proviso to Sub-section (3) of 125 Code Criminal Procedure 1973 ? If yes, the second question is, in proceedings initiated by wife for the recovery of the maintenance allowance, the learned Magistrate is required to hold the inquiry? Mr. Shah L.A. for the petitioner has raised a contention before ice that before passing the impugned order the learned Magistrate has not made any inquiry as contemplated under second proviso of Sec. 125(3) Code Criminal Procedure inasmuch as the learned-Magistrate has not called upon the wife to ascertain her with that she if willing to go and stay with her husband or not when the petitioner has offered to maintain his wife on the condition that she should live with him. Therefore, the impugned order pared by the learned Magistrate is required to be quashed and set aside. In support of his contention he has relied upon the judgment of Calcutta High Court reported in AIR 1966 Calcutta 83 Rupchand Mahato Vs. Charuhala Mahatani and has also relied upon the unreported judgment of thin Court (Coram : J.M. Sheth, J., as then he was) in Crl. Revision Application No. 246 of 1974 decided on 5-7-1974.

(2.) Few relevant facts are required to be considered while dealing with the aforesaid contention railed by Mr. Shah which are as under :

(3.) On 28 1-1989 the wife filed Crl. Misc. Application No. 5 of 1989 before the learned J.M.F.C., Dwarka for recovering her maintenance amount in a gum of Rs. 2.770.00 for the period from 14-4-1988 to 20-1-1989 and for taking proper legal action in the matter along with the copy of the judgment of the learned Magistrate in Crl. Misc. Application No. 107 of 1985 by which, the was awarded maintenance. Copy of the said application ii ordered to be kepi on record of this case. In that recovery application, the petitioner husband appeared before the learned Magistrate in response to the order passed by him and submitted an application Exh. 8 inter alia contending that he has given Talaq to his wife and she has not accepted it, therefore, as per Muslim Law, he is entitled to keep 4 wives and she can stay with him as his wife. He is prepared to call her back and to keep her with him. Therefore. Recovery Application be rejected and the may be ordered to stay with him. The learned Magistrate by his order dated 31-1-1990 rejected the application Exh. 8 of the husband as according to him only at the late stage of making payment to his wife he has submitted such an application and he has not even made any payment or he has deposited any amount with the Court during the intervening period. It is not proved that he has made any bonafide or proper attempt to call her back.