BHENDU BALA DASI Vs. MOHAN CHANDRA GANTAIT

JUDGEMENT

(1.) This is a Reference by the Additional Sessions Judge, Asansol, recommending that the order passed by a Magistrate, 1st Class, at Asansol on October 19, 1957, dismissing the application filed by Bhendu Bala Dasi, first party under Section 488 of the Code of Criminal Procedure may be set aside.

(2.) The Petitioner before the learned Magistrate was the wife of one Mohan Chandra Gantait. She claimed maintenance from her husband on the ground that she was treated with cruelty and driven out of the house after which the husband had married again. The husband resisted the claim of the Petitioner wife on the ground that he had no independent means or income of his own. The learned Magistrate accepted the case of the husband and without coming to any finding on the allegation of cruelty and ill-treatment and without any finding as to whether she had sufficient cause for living separately from her husband dismissed her petition on the finding that the husband did not have sufficient means to pay a separate maintenance. In coming to that finding the learned Magistrate took into consideration the fact that the husband was not in any employment and that he only looked after the cultivation of the lands of his father.

(3.) The learned Magistrate's approach to the case was entirely wrong. The liability to pay maintenance arises not out of being employed anywhere in any gainful employment but out of the ability, that is, the capacity of a healthy and able-bodied person. This is the view that has been taken by several High Courts. The simple fact that one is not possessed of lands or any separate income could not exonerate him from the liability to maintain his wife. This principal of law has apparently been lost sight of by the learned Magistrate. The matter, therefore, must be sent back to him and he is directed to come to a positive finding on the consideration of evidence, on the allegation of cruelty and ill-treatment made by the wife in her petition. Upon such finding will depend the question of the husband's liability to pay the maintenance and if so the extent thereof.