QADIR Vs. MST ZONI

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge, Jammu, recommending that an order made by the Munsiff Magistrate First Class, Kishtwar, directing the applicant to pay Rs. 10/- P. M. as maintenance to the non-applicant, his wife, be quashed inasmuch as the non-applicant has refused to live with the applicant.

(2.) I have heard arguments in this case. Under Section 488, R. P. C. , if any person having sufficient means neglects or refuses to maintain his wife one of the authorities specified in that section upon proof of such neglect or refusal may order such person to make a monthly allowance for her maintenance, but under Sub-section (4) of the same section no wife is entitled to receive an allowance from her husband under this section if she lives in adultery, or, without sufficient reason, she refuses to live with her husband. The facts as they appear in this case are that the applicant was taken as a Khanadamad, i. e. resident sonin-law by the father of the wife. He was to live with her in her father's house. After a brief stay there he found that it was not possible for him to live in that house. He then brought a suit for the restitution of conjugal rights against his wife and father-in-law. In that suit the parties came to a compromise and the suit was decreed accordingly. According to that compromise the applicant again undertook to reside in the house of his father-inlaw, but the father-in-law also agreed that he would have no objection if the wife went to her husband's house to reside with him. The applicant then went to his father-in-law's house and stayed there for some time more. But again he could not pull on there and the reason alleged by him is that some undesirable fellow frequented the house and he objected to these visits. Before the trial Magistrate he showed his willingness to maintain the wife in his house but the wife refused it point-blank. On these facts I wonder how the trial Magistrate made an order for the grant of an allowance of Rs. 10/- P. M. in favour of the wife. It is true that according to custom the applicant was to live in the house of his wife's parents but if he could not do it, he could not be compelled to do so by invoking the provisions of Section 488, Cr. P. C. Under Sub-section (4) of Section 488, Cr, P. C. as already indicated, no wife who, without any sufficient reason, refuses to live with her husband can claim an allowance under this statutory provision. I doubt if the refusal by the wife to live with her husband in his house on the ground that he is a Khanadamad can constitute a sufficient reason under Sub-section (4 ). It has been held in many cases that the provisions of Section 488. Cr. P. C. , are independent of personal law and I take it that they are also independent of any custom governing marriage between the parties. Under Section 488, Cr. P. C. , only that husband who neglects or refuses to maintain his wife can be compelled to pay maintenance allowance, but if the husband is willing to maintain his wife, the wife cannot refuse to live with him and still claim an allowance unless she can adduce sufficient reasons for this refusal. Mere custom by which the husband is required to live in his wife's parents' house cannot be a good ground for refusal to live with the husband under Sub-section (4) of Section 488, Cr. P. C. If the husband is guilty of cruelty or is guilty of any other misconduct which makes it difficult or undesirable for the wife to live with him, it would certainly constitute a sufficient reason under the aforesaid Sub-section (4 ). In this connection reference may be made to Muhammad Azizullah v. Abdul Halim AIR 1935 Oudh 285 (A) where it was held that, though under personal law of Muslims a wife can refuse to live with her husband, if her prompt dower is not paid, this would not be a sufficient reason within the meaning of Sub-section (4) of Section 488, Cr, P. C. to justify her to refuse to live with her husband and still claim an allowance under this section. For these reason I accept the recommendation made by the learned Sessions Judge, and quash the order of maintenance passed by the Munsiff Magistrate First Class, Kishtwar. Reference accepted.