BAI KANTA MOTICHAND Vs. AMRATLAL

JUDGEMENT

(1.) THE facts leading to this revision are very simple. The applicant preferred an application to the First Class Magistrate, Rajkot, fort maintenance against her husband, the present opponent, under Section 488, Cr. P. C. Some time before the application the opponent came to Rajkot and lived in rented house with the applicant. After about three months thereafter he returned to Botad which is his home town and it is alleged that since then he has neglected to maintain her. After an exchange of notices between the parties the opponent filed a suit against the applicant in the Court of the Civil Judge, Junior Division, Botad and obtained a decree for restitution of conjugal rights on 20. 8. 51. The applicant filed the present application for maintenance in the Court of the First Class Magistrate, Rajkot. The suit and the application were filed almost simultaneously, the suit having been instituted on 23. 2. 50 while the present application was instituted four days thereafter namely on 27. 2. 50.

(2.) THE petitioner was represented in the suit in Botad by a Pleader but beyond that she does not appear to have taken any active part in the suit. She was content with prosecuting her application in the learned Magistrate's Court at the Rajkot end. After the evidence of the petitioner's witnesses and the evidence of some of the opponent's witnesses was recorded, the opponent produced a certified copy of the decree in the Magistrate's Court. The learned Magistrate then recorded the remaining evidence of the opponent' and after hearing arguments he made an order rejecting the petitioner's application for maintenance on the simple ground that the decree of the Civil Court was binding on her. He did not decide the merits of the petitioner's application. The learned Sessions Judge refused to entertain an application for revision against the learned Magistrate's order and, therefore, the petitioner has approached us in revision against the orders of the Courts below.

(3.) WE are unable to endorse the learned Magistrate's decision which implies that the wife is not entitled to have her application considered on merits merely because the husband started. Civil proceedings almost simultaneously with her in another Court and won in the race by obtaining a decree in his favour before the Magistrate could dispose of the application before him. Section 488 casts upon the Magistrate the responsibility deciding the question whether the husband has refused to maintain the wife and though the decree against the wile would be a very cogent piece of evidence against her, it cannot relieve the Magistrate of this statutory obligation to consider the wife's application for maintenance on merits. The view of the learned Magistrate that he could not consider the wife's application on merits leaves out of account cases in which a husband may obtain paper decree from a Civil Court with a view to anticipate maintenance proceedings without any intention of Keeping his wife or fulfilling his obligations towards her.