DHAN KAUR Vs. NIRANJAN SINGH

JUDGEMENT

(1.) FACTS Dhan Kaur was married to Niranjan Singh 17-18 years ago and a son Mehar Singh was born to them. About 10/12 years ago, a brother of Niranjan Singh died, leaving behind Bhan Kaur as widow, whom Niranjan Singh remarried in order to save the ancestral property. Thereafter Dhan Kaur continued to live with her husband and gave birth to a son, who died during infancy and also to a daughter Kelo, who is still living and is one of the applicants. After sometime at the instigation of the co-wife, Bhan Kaur, Niranjan Singh started mal-treating Dhan Kaur. It was said that education of Mehar Singh was stopped. About a month before making the application, Dhan Kaur was beaten and turned out of the house. A panchayat was taken but to no effect. Niranjan Singh respondent admitted all the facts aforesaid, but explained that there was no neglect on his part. As a matter of fact Dhan Kaur had gone to visit her parents and there she was instigated by her brothers to file an application under Section 488, Cr.P.C. The learned magistrate has accepted the version of the husband as correct and has held that Dhan Kaur's refusal to live with her husband is not justified and, accordingly, rejected the application under Section 488, Criminal Procedure Code. The petitioner went up in revision to the Court of the Additional Sessions Judge, Ferozepur who referred the matter to the High Court. ORDER OF REFERENCE TO DIVISION BENCH J.S. Bedi, J. (D/- 11-8-1959) The short point which requires determination in this reference is whether a wife is entitled to live separately and claim maintenance on account of remarriage of her husband. On this point there are conflicting authorities. Tek Chand J. in Ishar v. Mst. Soma Devi, AIR 1959 Punj 295 held that mere fact that the husband has contracted a second marriage or has kept a mistress, by itself, is not a valid ground for claiming maintenance, under section 488, if the husband has not otherwise neglected or refused to maintain her. Contrary view has been taken by Randhir Singh J. in Smt. Maiki v. Hemraj, AIR 1954 All 30 wherein it has been held that no other ground for refusal to live with the husband need be looked into if there is the good ground of husband's contracting another marriage, for the wife's refusal to live with her husband. The fact that the wife came once of twice to live with her husband even after his remarriage does not improve matters in favour of the husband. The same view has been taken by Guha J. in Kunti Bala Dassi v. Nabin Chandra Das, (S) AIR 1955 Cal 108, by J. N. Wazir C. J. and S. Murtaza Fazl Ali J. in Mst. Biro v. Behari Lal, AIR 1958 J and K 47 and by Grover J. in Dr. Mukand Lal v. Smt. Jyotishmati, 1958-60 Pun LR 314: (AIR 1958 Punj 390). This point arises almost in many cases daily. Although I agree with the authorities quoted later but this point is not free from difficulty. It may, therefore, be decided more authoritatively, by a larger Bench. I, therefore, direct that the papers be placed before my Lord the Chief Justice for orders. JUDGMENT OF THE DIVISION BENCH Mehar Singh, J. The question, almost an abstract question, of law that has been referred for decision, is whether a wife, having under the law a right to live separately from her husband because of his having contracted marriage with another wife, can succeed in a claim for maintenance under section 488 of the Code of Criminal Procedure without proof of neglect or refusal on the part of the husband to maintain her?

(2.) The reference has been necessitated because of difference of judicial opinion on the question. In Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134, a Division Bench of the Calcutta High Court, and in AIR 1959 Punj 295, Tek Chand J., have held that the mere fact that the husband has contracted a second marriage or has kept a mistress, per se, is not a valid ground for the wife to claim maintenance, under section 488, if the husband has not otherwise neglected or refused to maintain her. This is one approach to the question. In Banarsi Bai v. Ghisoolal, AIR 1955 Ajmer 8(2), Nigam J. C., Syed Ahmad v. Naghath Parveen Taj Begum, AIR 1958 Mys 128, Hedge J., and in AIR 1958 J and K 47, Murtaza Fazl Ali J., with whom Wazir C. J. concurred, have expressed the view that neglect or refusal or no neglect or refusal the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. These are the two of cases taking directly opposing views on the question. In addition in Senapathi Mudaliar v. Deivanai Ammal, AIR 1950 Mad 357; Gunni v. Babu Lal, AIR 1952 Madh B 131; AIR 1954 All 30; Bayanna v. Devamma, AIR 1954 Mad 226, Rajeswariamma v. Viswanath, AIR 1954 Mys 31 and 1958-60 Pun LR 314: (AIR 1958 Punj 390), there are observations, which lend some support to the second view, but the facts of the case show that those were really cases of neglect or refusal to maintain on the part of the husband.

(3.) The sub-sections of section 488 relevant for the consideration of the question are-