SAVITRI DEVI Vs. JAGDISH NARAIN

JUDGEMENT

(1.) THIS reference has been made by the First Temporary Civil and Sessions Judge Etawah by his order dated 31-1-1974 in Cr. Revision No. 131 of 1973 with the recommendation that the order of the Magistrate dated 10-12-1973 rejecting the application of the revisionist for main enance under Section 488 (1), Cr. P. C. be set aside, The learned Magistrate had dismissed the petition under Section 488, Cr. P. C. on the ground that the petitioner had refused to live with her husband even when she was asked by the court whether she was still willing to go and live with him. Another ground for the dismissal of the petition was that the (petitioner was admittedly given. 75 acre of land by her father-in-law in her name and she suppressed this fact and wrongly stated in her petition that she had no means to maintain herself. The learned Sessions Judge has considered the material on record. The learned Magistrate had ignored the allegations of the petitioner that this land was under the cultivation of Jagdiah Narain although it was in her name. The learned Magistrate has obviously drawn a wrong conclusion after ignoring this plea.

(2.) ON the point of refusal to live, admittedly the opposite ;party Jagdish Narain had contracted a second marriage from whom he had children. This itself is a just ground for the wife's refusal to live with him as provided under Section 488 (3), Cr. P. C. A point arises whether this can be considered to be a just ground only at the stage of Section 488 (3), Cr. P. C. or even at the stage of Section 488 (1), Cr. P. C. Subsection (4) of Section 488, Cr. P. C. governs the case under Section 488 (1), Cr. P, C. also. This sub-section only provides that she would not be entitled to any maintenance if she refused to live with her husband without any sufficient reason. The ground which is a just around for refusal to live with him under Section 488 (3), Cr. P. C. can certainly be considered to be sufficient reason for the purpose of Sub-section (4) of Section 488, Cr. P. C. In this view, I am supported by a decision of Oak J. (as he then was) in the case of Badruddin v. Aisha Begum 1957 All LJ 300. A similar view was taken by the Mysore High Court in the case of Shambu Reddy v. Ghalamma, 1966 Cr LJ 1291 : AIR 1966 Mys 311 and the Patna High Court in the case of Abdul Ghaffar v. Bibi Hafiza Khatoon. Desai, J. (as he then was) in the case of Ramji Malviya v. Munni Devi Malviya no doubt, took the view that the first proviso to Sub-section (3) of Section 488, Cr. P. C governs only Sub-section (3) and not subsection (1 ). But he held that even then the wife's refusal to live with the husband on account of remarriage may be the sufficient reason within Sub-section (4) of Section 488, Cr, P. C. In case, she has separated on a just ground and her husband has not made any provision for her maintenance, it will amount to neglect or refusal to maintain her. The Magistrate was justified in taking into consideration the circumstances that she had been given. 75 acres of land. But he should. also give a definite finding whether she is being actually benefited by that land or not and whether it is actually under the cultival tion of Jagdish Narain. He should also decide whether that is sufficient for her maintenance and what should be "the quantum of maintenance.

(3.) IN the result the reference is accepted, the order of the Magistrate dated 10-12-1973 is set aside and the case is sent back to the Magistrate concerned for considering the matter afresh and passing the final order under Section 488, Cr P. C. according to law. The matter has become an old one. The Magistrate is directed two proceed exipeditiously. The record of this case and the copy of the order of this Court shall be sent to the lower court by the office at a very early date.