ABNASH CHANDER KANSHI RAM Vs. SOSHILA DEVI

JUDGEMENT

(1.) THE parties to these proceedings namely Abnash Chander and Shrimati Sushila devi, were married about 13 years back, in the course of which Shrimati Sushila devi bore five sons and two daughters. On 28th September 1959 she applied to the Sub-Divisional Magistrate at Fazilka for maintenance under section 488 of the cri. P. C. At that time she was carrying another child in her womb. She complained that for some time her husband had been indulging in drinking and gambling, and since she had been objecting to his bad ways of life her husband started maltreating her, and about five years back turned her out of the house. She then went away to live with her parents at Fazilka, but through the intervention of respectable persons, reconciliation was effected, and she returned to Abnash chander. Once again she was turned out and went away to her parents. In order to equip herself for earning her livelihood she joined a school in the ninth class. Again efforts were made to persuade her husband Abnash Chander to take her back and maintain her, but Abnash Chander did not even listen to the Panchayat which consisted of Milkhi Ram Darbar Chand, Murari Lal, Jagan Nath and Munshi ram, Shrimati Sushila Devi claimed maintenance for herself and her minor children who had been living with her.

(2.) IN contesting the claim for maintenance, Abnash Chander denied the allegations of beating and desertion and made the counter allegation that Shrimati sushila Devi had herself gone away to her parents and had been keeping away at their instance, so that she should maintain them by working as a teacher at fazilka. He offered to maintain those of the children who were living with Sushila devi, provided they lived with him and also stated that after Sushila Devi had been delivered of a child he would be prepared to take her as well to his house. The learned Magistrate after going through the evidence found that Abnash chander had refused to maintain his wife and the two minor children who had been living with her. He, accordingly, awarded maintenance to Shrimati Sushila devi at Rs. 60/- per mensem for herself and Rs. 10/- for each child. Though a revision was preferred to the Court of Session by Abnash Chander, the learned sessions Judge, Ferozepur, found no merit in it and refused to interfere. Two cross petitions have been preferred to this Court for revision of the order of the magistrate awarding maintenance to Shrimati Sushila Devi and her two minor children. While in criminal revision No. 855 of 1961 Shrimati Sushila Devi prays for the enhancement of the amount, in criminal revision No. 480 of 1961, her husband Abnash Chander prays for quashing the order passed by the Magistrate.

(3.) THE finding of the trail Magistrate that Abnash Chander had been refusing to maintain his wife and the minor children who were in her custody was affirmed by the learned Sessions Judge and is no longer in dispute before me. Shri Sachar who appears for Abnash Chander has, however, assailed the order of the Magistrate on the grounds, (a) that the offer made by Abnash Chander to take back his wife had been put to her and (b) that in any case no order for the maintenance of the minor children who are in the custody of Sushila Devi could be passed as Abnash chander was their lawful guardian and they must reside with him. None of these contentions, in my opinion, has any force. So far as the offer made by Abnash Chander to maintain his wife Sushila Devi is concerned, there was no offer worth the name. In the application which Abnash Chander presented before the Magistrate on 16th September 1959, he had specifically stated that though he was willing to take back his children, it would be only after Sushila Devi had been delivered of the child that he would visit Fazilka and take her to Abokhar. It is stated by the learned counsel for Shrimati Sushila Devi that subsequently after a child had been born to Shrimati Sushila Devi, Abnash Chander never offered to take her to his house, nor did he visit Fazilka for the purpose. There is nothing on the record to rebut this statement. In these circumstances, there was no offer which could be put to Shrimati Sushila Devi and there has been no procedural irregularity.