SALAMANT MAISH Vs. NEENA

JUDGEMENT

(1.) THIS is a reference made by learned Sessions Judge, Jammu on 28 -01 -2002, whereunder the order passed by Forest Magistrate, Jammu has been recommended to be quashed. During the course of proceedings u/s 488 Cr.P.C., the respondent -husband filed an application for permission of the court to establish that the petitioner -wife is living in adultry. The learned Magistrate disallowed the application on that stage and held that the Magistarial court has first to pass an order of maintenance when sufficiency of means and neglect is proved by the wife. According to the Magistrate, it was after the passing of this order that court could advert to the fact as to whether or not the wife because of living in adultry was entitled to maintenance. According to the learned Magistrate in the event of adultery having been proved, the court would revoke the order. When a revision was filed before the court of Sessions, it came to finding that Section 488 Cr.P.C. cannot be read independent of sub -section (4) and adultry which is defence available to the husband on its proof, cannot be a claim of the wife for maintenance. Thus according to learned Sessions Judge made this reference after making the observation as above.

(2.) I have heard the learned counsel for the parties and gone through the file.

(3.) HOWEVER , in explanation to the proviso supplied to sub -section (3), the fact that the husband has contracted another marriage or keeps a mistress will be taken to be just a ground on behalf of wife for refusal to live with the husband. This court is called upon to answer the question as to whether the proceedings in terms of section 488 Cr.P.C. can be bifurcated as suggested by the Magistrate or have to be taken simultaneously in one go. Sub -section(4) seems to be quite clear. This reads as under: -