JAMUNA PRASAD PATEL Vs. PREMABAI JAMUNA PRASAD

JUDGEMENT

(1.) THIS is a revision petition by the husband challenging the order dated 18 -1 -1960 of the Magistrate 1st Class, Chhindwara, ordering him to pay maintenance allowance of Rs. 60 per month to his wife and Rs. 50 for his two children living with her. The learned 1st Additional Sessions Judge, Chhindwara, upheld that order and declined to refer the matter to this Court.

(2.) THE question whether the husband had kept the younger sister of his wife as his mistress in the house and whether she gave birth to an illegitimate issue as a result of his criminal intimacy with her being questions of fact concurrently answered against the petitioner could not be reopened. Even otherwise also I find the evidence on record sufficiently conclusive to support the findings. I do not, therefore, feel disposed to disturb those findings.

(3.) IN the course of his argument he submitted that the amendment whereby contracting of the second marriage or the keeping of a mistress in the house by the husband is recognised as a just ground for wife to refuse to live with him, would come into play only when the order granting maintenance is sought to be enforced under sub section (3) of section 488, Criminal Procedure Code. He means to suggest that if in the course of execution of that order the husband were to make an offer to maintain his wife on condition that she comes and stays with him under his roof, the Magistrate will have then to consider whether the wife has any just grounds to refuse to comply with the said condition, and only if she is found to have such grounds that the order awarding maintenance allowance will be enforced. Otherwise the Magistrate can refuse to enforce that order. The grounds recognised under the said amendment are according to him irrelevant at the initial stage when the petition is being decided in terms of sub -section (1) of section 488.