JAGARNATH YADAV Vs. PANWA

JUDGEMENT

(1.) Opposite party No. 1 is the legally wedded wife of the applicant. She preferred an application under Section 125 Cr. P. C. and was allowed maintenance by the Magistrate at the rate of Rs. 151- per month. In revision the Sessions Judge reduced the amount of maintenance to Rs. 50/-per month. A short point has been urged by the learned counsel for the applicant, namely, that before the Magistrate the husband made an offer to take the wife to his place and to keep her and maintain her. It is urged that on the face of such offer if the wife was unwilling to reside with the husband the Magistrate under the second proviso to Section 125 (3) was called upon to give a finding whether the ground for the refusal to live with the husband is a just ground or otherwise and only then any maintenance could have been awarded. From the perusal of the judgments of the trial Court as well as that of the Court of revision it would be crystal clear that such offer of the husband was not considered nor a finding has been recorded. Learned counsel for the applicant relied upon the case of Guru Prasad v. Smt. Ram Dulari, 1979 A. L. J. 286 in which the very point directly arose for consideration. The Court took the view that the decisions of the subordinate Courts are no decision in law when any finding on the aforesaid point has not been recorded by the two Courts below. It is urged by the learned counsel for the opposite party that the law laid down in the case of Guru Prasad (supra) is not sound and is contrary to the pronouncement in the case of Mahrunnisa v. Noor Mohammad, A. I. R. 1971 Alld. 1381 (D. B. ). I am constrained to observe that such submission of the learned counsel for the opposite party is totally misconceived. The point that arose for consideration in the Division Bench case was whether remedy in question is available to the husband even later after the order allowing maintenance is passed. That case was covered under the old Cr. P. C. It was held that notwithstanding that an order under Seetion 488 Cr. P C. sub-clause (1) awarding maintenance has been passed the remedy still remains open and can be even subsequently availed of under the proviso to sub-section (3) of Section 488. The case of Mehrunnisa does not lay down that this remedy is available only at that stage and not earlier. In fact it would amount to misinterpreting the law laid down in that ruling. I may mention that in that case the application under Section 488 sub-clause (3) proviso was moved in May 1965. In fact, that application was moved simply to cancel the maintenance awarded. The offer was actually made in July 1968 and not earlier. The offer in question was made after maintenance has already been awarded under Section 488 (1) Cr. P. C. The first application of May 1966 was not very clear as has been observed in the very ruling in paragraph 37 and it was application dated 31st of July 1968 when the offer was made. The order itself was passed in June 1966. Obviously the offer when it was not made earlier when the order under Section 488 U) was passed could not have been considered. It is noteworthy that in the very ruling in paragraph 25 the principles laid down in some other rulings quoted therein were mentioned, including the decision of Ramji Malviya v. Smt Mttnni Devi A. I. R. 1959 All. 767 holding that proviso to old Section 488 (3) affords a second opportunity to the husband. This in itself implies that the objection can be taken at the first opportunity also, namely, when the application is being heard under Section 125 (1) of the present Cr. P, C. corresponding to Section 488 (1) old Cr. P. C. The ratio of the case of Mahrunnisa (supra) is that in addition to the right to make such offer at the earlier stage before the decision under section 488 (1) Cr. P. C. old corresponding to Section 125 (1) of the present Cr. P. C. The husband can even later raise this plea under the proviso of sub-clause (3) of Section 488 and nothing beyond has been laid down. The case of Mehrwmnisa actually is an authority on a different point. It lays down only two propositions, firstly that the remedy under the proviso can be availed of later, also seeking cancellation of the maintenance order and secondly in such a case the maintenance for the earlier period would still be payable and any cancellation if made later will not have any retrospective effect. The result is that this ruling does not apply at all. Both the subordinate Courts have erred in not considering the offer made by the husband in the light of the provisions, contained under Section 125 (. 3) proviso and that render the very judgment allowing maintenance bad. In the result the application is partly allowed and the Magistrate's order dated 6-10-1981 and the order of the 1st Additional Sessions Judge dated 22-10-1982 are both set aside to that extent and the Magistrate is directed to give a finding on the offer made by the husband also and to consider the wife's declination to accept such offer in case she declines in the light of the proviso contained in Section 125 (3) and then decide afresh whether the wife is entitled to any maintenance and also determine the amount of maintenance as such afresh. .