GUNNI Vs. BABU LAL

JUDGEMENT

(1.) THIS is a petition arising out of an application for maintenance by a wife against her husband. The applicant stated in her petition under Section 488, Cr. P. C. that she was married to the opponent Babu Lal in Samvat 1993; that three years after her marriage the non-applicant Babu Lal contracted a second marriage with one Mt. Pancho and that after his second marriage Babu Lal at the instigation of Mt. Pancho began to illtreat her; that when in Samvat 2005 a son was born to the petitioner from Babu Lal, the illtreatment increased and her husband frequently beat her arid starved her and her child of the necessary clothing and food. The petitioner further stated that on 26. 5. 50 Babu Lal told her to remain at the service and attendance of his second wife and not to accept any food or clothing from her parents and then subsequently beat her with shoes and drove her out of the house. Babu Lal admitted that the applicant was his wife and that he begot a child from her in Samvat 2005. He also admitted that he had contracted a second marriage with Mt. Pancho. But he denied the allegation that he was illtreating the petitioner or that he had asked her to leave his house.

(2.) THE Sub-Divisional Magistrate Kolaras before whom the applicant presented her petition found that the non-applicant Babu Lal might have given a beating to the applicant on one or two occasions and might have displeased her, but that this sort of conduct on the part of a husband was not unusual in "this Country or society. " The learned Magistrate further held' that the applicant had failed to prove that Babu Lal beat her on the night of 26. 5. 50 and drove her out of the house. The Magistrate was inclined to think that Mr. Gunni herself left the counter-petitioner's house on 9. 7. 50. He gave no finding as to whether after this date, Babu Lal neglected or refused to maintain her. The Magistrate however observed that the petitioner used to live with her husband and child in, a separate house and that while she was living with him Babu Lal provided her with adequate food and clothing. On these findings the learned Magistrate refused to pass an order directing the counter-petitioner, to pay his wife and the child of 2j years of age any amount by way of maintenance. The /petitioner then applied to the Sessions Judge of Guna for a revision of the order of the Magistrate. The learned Sessions Judge agreed with the findings of the, (Magistrate and rejected the revision petition. The applicant has now come up in revision to this Court.

(3.) AFTER hearing the learned Counsel for the parties, I have formed the opinion that the order of the Magistrate dismissing the applicant's petition for maintenance, cannot be sustained. Both the learned Sessions Judge and the Magistrate appear to have ignored altogether the fact that a wife seeking maintenance under Section 488 has to prove neglect or refusal on the part of her husband to, maintain her and her child who is unable to maintain herself to that she is not required to establish cruelty oh he facet of her husband, although erectly may be proved as a lust ground for the wife's refusal to stay with her husband. The Courts be, low also lost sight of the amendment effected In 1948 to Sub-clause 3 of Section 488, Cr. P. C. the Criminal Procedure (Amendment) Act, 1949. By this amendment it is now provided that if a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be this ground for his wife's refusal to live with him. In the present case the marriage of the pitiable with the non-applicant Babu Lal is admitted. Babu Lal also admits his second marriage with Mt. Pancho. He also, admits that he has a son aged about 21 years from the applicant. Before me it is also not denied on behalf of the counter-Petitioner Babu Lal that the applicant Mt. Gunni ceased to live with her husband a few days prior to the filing of the application under Section 488 before the sub-Divisional Magistrate Kolaras and has been since then living along With her son at her parents' residence and that after the applicant's leaving, her husband's residence, the husband has not maintained her and the child. Babu Lal has said in his statement that the applicant is not entitled to any maintenance if she lives separate from him. Babu Lal's father also says is his evidence that if the applicant is willing to live in his house, as other members of the family do, then he and his son are prepared to maintain her and the child.