EMPEROR Vs. DAULAT RAIBHAN

JUDGEMENT

(1.) THIS is a reference by Mr. J.R. Mudholkar, Sessions Judge, West Berar Division Akola, in Cri. Revn. No. 108 of 1946 on his file. The order which the learned Sessions Judge recommends should be set aside concerns an award of a maintenance allowance of Rs. 20 per month granted to the non-applicant 2 under Section 488, Criminal P.C.

(2.) THE wife was living separate from her husband and the question was whether she had sufficient reason for refusing to live with her husband. The wife urged two grounds for refusing to live with her husband. The first was cruelty. The learned Magistrate did not consider that ground sufficient inasmuch as he says nothing about' it in his order. He bases his order on the second ground. This ground was that the husband was impotent and unable to perform his marital duties. The learned Magistrate thought this to be a sufficient ground for the wife to live separate from her husband.

(3.) AS against these learned Counsel for the husband contended that the present law on the subject does not take this into account. He referred to Act 19 [xix] of 1916, and refers to Ss.444 and 555 of Mulla's Hindu Law (1946 Bdn.). He also contends that this is the first case in which such a claim has been urged. I have been unable to find a single case in which such a claim was put forward by the wife. There is nothing to prove that under the circumstances mentioned in this case a wife is entitled to live apart from her husband and claim maintenance under Section 488, Criminal P.C. It is open to me to take this fact into account. Courts in India have not been called upon to examine this question at any time and it is fair to assume that had such a ground been thought good it would have been urged ere this.