HEMCHAND Vs. PRABHATI BAI

JUDGEMENT

(1.) THIS is a husband's application in revision challenging the grant of maintenance allowance to his wife under Sec. 488 of the Code of Criminal Procedure.

(2.) FACTS material for the determination of this application may be briefly recalled. Smt. Prabhati Bai was married to Hemchand some 34 years ago. A son and a daughter were born out of this wedlock. In November, 1959 Prabhati Bai made an application under Sec. 488 of the Code of Criminal Procedure alleging that her husband Hemchand was guilty of cruelty to her and was carrying on an intrigue with another woman; that she was turned out by him from his house and she is being maintained by her mother. As the husband had an income of Rs. 330/- per month, she claimed Rs. 75/-per month by way of maintenance allowance. The husband resisted the petition denying the charges of cruelty and adultery. He claimed to have been considerate towards, his wife despite her being an idiot. He submitted that he was prepared to maintain her notwithstanding her imbecility. He stated that his income, merely amounted to Rs. 156/- and he had a large family to maintain. The learned Magistrate held that Hemchand had started ill-treating his wife on account of her mental ailment as he was fed up with her. He awarded her a maintenance allowance of Rs. 30/- per month. Dissatisfied with this order Hemchand presented an application by way of a revision before the Additional Sessions Judge, Jaipur. By his order dated 15. 4. 1961 he affirmed the order passed by the learned Magistrate. Now the husband has come to this Court.

(3.) IN Mr. Dhan Kaur V. Niranjan Singh (1) Mehar Singh & Dna JJ. have endeavoured to reconcile the two set of cases. They have held that proof of neglect or refusal is the basis of an order under Sec. 488. Neglect or refusal may be express or implied. If the husband takes another wife in practice from this conduct neglect or refusal may be inferred excepting in rare cases.