RAMJI MALVIYA Vs. MUNNI DEVI MALVIYA

JUDGEMENT

(1.) This is an application by a husband who has been ordered under Section 488 Cr. P. C., by a Magistrate to pay to his wife maintenance at the rate of Rs. 40/- per month. The marriage is admitted and it is also admitted that the wife has been living with her parents since 1951. There were two issues of the union, a son and a daughter; the wife left the matrimonial home in 1950-51 or earlier with the son, leaving the daughter with the husband. The son died while in her custody arid the daughter is being brought up by the husband. The wife complained that she was beaten and turned out by the husband in 1951 because she was ugly; to prove this she examined only her brother, who, however, could not give any evidence as an eye-witness because be was not present at the time when the wife left the husband's home. The wife did not care to come into the witness-box to depose about the circumstances in which she left her husband. The husband came into the witness-box and deposed that the wife herself deserted him because he was suffering from pulmonary tuberculosis and was greatly indebted. He further stated that he tried to bring her back but she refused to live with him. His .statement remained unchallenged. It must, therefore, be held that it was the wife who deserted the husband in 1950-51. It is admitted that in 1955 the husband remarried. He had to bring up the minor daughter and the wile refused to live with him; so he was obliged to remarry.

(2.) That husband's reply to the wife's claim for maintenance is that on account of her desertion she was not entitled to any maintenance and that still he was prepared to pay her Rs. 10/- per month on account of his moral obligation, but nothing more. The Magistrate ordered him to pay her Rs. 40/- per month.

(3.) If a husband "neglects or refuses to maintain his wife", he may be ordered to pay monthly allowance to her; see Section 488(1) Cr. P. G. If the husband fails without sufficient cause to comply with the maintenance order, the Magistrate may issue a warrant for levying the amount due and may sentence him to imprisonment in default; see Sub-section (3). If the husband offers to maintain his wife on condition of her living with him and she refuses to live with him, the Magistrate should consider any grounds of refusal stated by her and "may make an order under this section notwithstanding such offer, if he is "satisfied that there is just ground for so doing." If he has contracted marriage with another wife, it is to be considered just ground for the wife's refusal to live with him; this is one proviso. The other proviso is that no warrant shall be issued to the recovery of "any amount due under this section" unless an application is made to the court to levy it within a period of one year from the day on which it became due. Then comes Sub-section (4), which is to the effect that no wife shall be entitled to receive an allowance from her husband "under this section if, without any sufficient reason, she refuses to live with her husband."