GANI ALI Vs. SAVABAI GANI

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 per the second proviso to sub-sec. (3) of 125 Cr. P. C. 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 learned Advocate for the petitioner has raised a contention before me that before passing the impugned order the learned Magistrate has not made any inquiry as contemplated under second proviso to Sec. 125(3) Cr. P. C. inasmuch as the learned Magistrate has not called upon the wife to ascertain her wish that she is 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 passed 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 v. Charubala Mahatani and has also relied upon the unreported judgment of this Court (Coram : J. M. Sheth J., as then he was) in Cri. 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 raised by Mr. Shah which are as under : (1) On 17-5-1985 the wife was driven out by the husband from his house. (2) On account of her desertion the wife filed a maintenance application being Cri. Misc. Application No. 107 of 1985 in the Court of learned J. M. F. C., Dwarka. (3) After the evidence of the wife was recorded, her husband gave divorce, thereafter on 24-9-1987 the learned Magistrate awarded maintenance of Rs. 300.00 per month to the wife. (4) Aforesaid order of the learned Magistrate was challenged by the husband before the learned Addl. Sessions Judge in Cri. Revision Application, which was dismissed on 16-1- 1990. (5) The husband has challenged the aforesaid order before this Court by filing Spl. Civil Application No. 317 of 1990 which is admitted by this Court on 4-2-1991 and it was fixed for hearing on 15-2-1991; but no interim relief was granted.

(3.) . On 28-1-1989 the wife filed Cri. Misc. Application No. 5 of 1989 before the learned J. M. F. C., Dwarka for recovering her maintenance amount in a sum 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 Cri. Misc. Application No. 107 of 1985 by which, she was awarded maintenance. Copy of the said application is ordered to be kept 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 she 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. He has not proved that he has made any bona fide or proper attempt to call her back.