JADHAN SAHU Vs. MTKULWANTI KUER

JUDGEMENT

(1.) These two petitions in revision have been heard together. One of the petitions is by the husband and the other by the wife. The point raised by these petitions is a very short point, namely, if Mt. Kulwanti Kuer, the wife, is living in adultery so as to disentitle her to maintenance from the husband, Jodhan Sahu. This, however, is one of those cases in which a long story has to be told in order to appreciate and decide a short point. I must, therefore, tell the long story first before I proceed to decide the point raised.

(2.) The story is as follows: Mt. Kulwanti Kuer was originally married to the elder brother of Jodhan Sahu. After the death of her former husband, she was married to Jodhan Sahu. This is not in dispute. By Jodhan Sahu she had at least two children before 1927, namely, a girl called Shanti Devi and a boy Lattu, who subsequently died. In 1927, Mt. Kulwanti Kuer applied for and obtained an order of maintenance under the provisions of Section 488, Criminal P.C. The order in her favour was passed on 31 May 1927, and was to the effect that Jodhan Sahu should pay her a Bum of Rs. 15 per month and 5 seers of rice per day. It appears that Jodhan Sahu had also another wife, and Jodhan lived with that other wife and her children in one house whereas Mt. Kulwanti lived with her children in an adjacent house. Mt. Kulwanti's case was that Jodhan agreed to maintain her and continued to maintain her till about 1944 when fresh differences arose between the parties. On 15 February 1945, Mt. Kulwanti Kuer made an application for the issue of a distress warrant for arrears of maintenance for about 11 months from February 1944 to January 1945. This application was objected to by the husband on various grounds, with which we are not at present concerned, by a petition dated 3 March 1945. On 12 April 1945, Mt. Kulwanti Kuer filed another application to the effect that the maintenance allowance should be enhanced because another son of the name of Bigan had been born to her by Jodhan in the year 1936 and she had to maintain that child as well. On that very date, that is 12 April 1945, Mr. Robertson, the then Sub-divisional Magistrate, passed an order in favour of Mt. Kulwanti Kuer allowing her maintenance for the period in question but reducing the rate by one-third of the original order of 31 May 1926. This order of 12 April 1945 may be conveniently described as Mr. Robertson's order in favour of the wife. In the operative part of Mr. Robertson's order, there was some mistake of calculation, and this was corrected on 5 May 1945, by Mr. Sarkar, the successor-in-office of Mr. Robertson. Against Mr. Robertson's order as modified by Mr. Sarkar, there was an application in revision to this Court by the husband. The application was disposed of by Beevor J., and this Court refused to interfere with Mr. Robertson's order as modified by Mr. Sarkar.

(3.) Then on 23 April 1945, the husband made an application with two prayers (a) for vacating the order of maintenance under Sub-section (5) of Section 488, Criminal P.C., on the ground that the wife was living in adultery, and (b) for a reduction of the rate of maintenance on various grounds. In this application of the husband an objection was made by the wife. On 29 May 1945, the then Sub- divisional Magistrate made an order reducing the rate of maintenance to half of the rate fixed by the original order of 31 May 1927. Against this order of the learned Sub-divisional Magistrate reducing the maintenance to half, there were an application in revision and also a reference, as both the husband and the wife were aggrieved by this order. The application in revision and the reference were disposed-of by Imam J., who by his order dated 22 January, 1946, set aside the order of the learned Sub-divisional Magistrate reducing the maintenance to half and remanded the case for a fresh hearing after the parties had an opportunity of adducing evidence on the question of the alleged adultery of the wife. Then the wife filed as second application in which it was alleged that part of the maintenance allowed by the first application was still in arrear and a prayer was made by issuing a distress warrant for the arrears as also maintenance for the period from February 1945 to March 1946. This second application was disposed of by the learned Sub-divisional Magistrate on 18 August 1946. In view of the order of Imam J., the learned Sub-divisional Magistrate allowed maintenance at the rate of the original order of 31 May 1927. The husband again came up to this Court, and, on 3 February 1947 my Lord the Chief Justice disposed of the application by holding, on a proper construction of Imam J.'s order, that the rate of maintenance had been revised by Mr. Robertson's order and the wife was entitled to maintenance only at that rate.