MANSUKHLAL VALLABHDAS v. MANGALABEN JERAMBHAI — 1969 DIGILAW 67 (GUJ)

N. G. SHELAT, J. ( 1 ) THE facts giving rise to the application in revision broadly stated are that the original applicant Mangalaben was married with the opponent Mansukhlal Vallabhdas on 64-64 and both of them began to live as husband and wife at the house of the opponent at Khambhalia in the District of Jamnagar. The applicant Mangalaben was a resident of the village of Bed in the District or Jamnagar. For some time they pulled on quite well and thereafter she came to be ill-treated and beaten by her husband. Her case then is that on 12-9-65 she was driven out from the house after beating her and was not even allowed to take away her clothes and ornaments etc. Since then the opponent has neglected and refused to maintain her. She has further alleged that the opponent has made very wild allegations against her character and that it has become impossible for her to live with him at his place. She therefore filed an application under sec. 488 of the Criminal Procedure Code claiming maintenance at the rate of Rs. 75/per month from him. ( 2 ) THE opponent-husband resisted the application inter alia contending that he has never ill-treated or beaten or driven her out from his house as alleged and on the contrary she had gone away to her parents place of her own accord. He further asserted that she has been in illicit intimacy with some one else at Bed and that she has even given birth to a child. Besides he contended that since they last resided at his house at Khambhalia the Court at Khambhalia and not at Jamnagar has jurisdiction to try the case. In these circumstances he said that she was not entitled to claim any maintenance from him. ( 3 ) THE learned Magistrate after considering the effect of the evidence adduced by the parties in the case found that the Court has jurisdiction to entertain and hear the application and that the applicant was entitled to live separate from her husband on account of wild and baseless allegations against her character though she has not been able to prove that she was ill-treated and beaten and that way deserted by her husband. In the result he allowed maintenance at the rate of Rs. 50/per month under sec. 488. or the Criminal Procedure Code. In the result he allowed maintenance at the rate of Rs. 50/per month under sec. 488. or the Criminal Procedure Code. Feeling dissatisfied with that order passed on 13-2-1969 by Mr. U. J. Pandya Judicial Magistrate First Class 4 Court Jamnagar in Miscellaneous Application No. 16 of 1966 the opponent-husband filed Criminal Revision Application No. 16 of 1967 in the Court of the Sessions Judge at Jamnagar. The learned Sessions Judge found that the Court has jurisdiction to entertain the application; that the opponent had refused or neglected to maintain his wife the applicant; and that the order for maintenance passed against him was proper. In the result the application came to be dismissed. Feeling dissatisfied with that order passed on 26-9-67 by Mr. A. A. Dave Sessions Judge Jamnagar the opponent has come in revision before this Court. ( 4 ) THE contention in the Courts below and faintly repeated before this Court was that the Court of the learned Magistrate at Jamnagar had no jurisdiction to entertain the application inasmuch as the parties last resided at Khambhalia and not at Jamnagar. The Court at Khambhalia has therefore jurisdiction to hear the application under sec. 488 of the Criminal Procedure Code. The provisions contained in sub-sec. (2) of sec. 488 of the Criminal Procedure Code relate to the jurisdiction of the Court in which proceedings under sec. 488 of the Code can be taken. It runs thus:-PROCEEDINGS under this section may be taken against any person in any district where he resides or is or where he last resided with his wife or as the case may be the mother of the illegitimate child. The words used in any district where he resides or is or where he last resided with his wife contemplate not the place but the district in which they last resided. It does not refer to any place so as to give jurisdiction to the Court within which that place is situated as in this case at Khambhalia. The words in any district where he resides or is or where he last resided with his wife came to be considered in the case of Shantabai w/o Vishnupant v. Vishnupant Atmaram Kulkarni A. I. R. 1965 Bom. 107 and it was held as under:-IN interpreting word district in sec. The words in any district where he resides or is or where he last resided with his wife came to be considered in the case of Shantabai w/o Vishnupant v. Vishnupant Atmaram Kulkarni A. I. R. 1965 Bom. 107 and it was held as under:-IN interpreting word district in sec. 488 (8) of the Code it is not only the word district which one must have regard to but the entire expression any district where he resides. The express use of word district should not be given any meaning different from normal connotation of that word and in view of express use of words any district where he (husband) resides it cannot be limited only to a Court within that district within whose jurisdiction husband resides. It appears therefore clear that the Magistrate stationed at Jamnagar had jurisdiction to entertain the application under sec. 488 of the Criminal Procedure Code inasmuch as Khambhalia is in the District of Jamnagar. Even if for a moment it was assumed that such an application cannot be entertained in any such Court by reason of sec. 531 of the Criminal Procedure Code an order passed by any such Criminal Court cannot be set aside unless it appears that an error has occasioned failure of justice. The order passed by any such Court is not void on the ground of having no jurisdiction. There is hardly anything to show that there has been any failure of justice on that account and the order passed by the Court in any such application even if taken to have been filed in a wrong Court can not therefore be set aside by this Court. That has been the settled position of law and apart from sec. 531 so saying we have two decisions one of this Court in Ambalal Narandas Patel v. Dahiben Dahyabhai Patel A. I. R. 1963 Guj. 91 (IV G. L. R. 501) and the other in the case of Ram Chandra Prasad v. State of Bihar A. I. R. 1961 S. C. 1629 which lay down the same thing. The finding recorded in that respect by the Courts below is correct. ( 5 ) IT was however urged by Mr. 91 (IV G. L. R. 501) and the other in the case of Ram Chandra Prasad v. State of Bihar A. I. R. 1961 S. C. 1629 which lay down the same thing. The finding recorded in that respect by the Courts below is correct. ( 5 ) IT was however urged by Mr. Chhaya for opponent that the learned Sessions Judge was wrong in observing that the learned Magistrate below had found that the applicant has established ill-treatment on the part of her husband and that he had neglected to maintain her when in fact it is held otherwise. The learned Sessions Judge it was urged has therefore not applied his mind to that aspect of the case. It does no doubt appear true that the learned Sessions Judge has observed that he entirely agreed with the learned Magistrate below that the wife had to stay separately because of the ill-treatment given by the husband and that the husband had failed and neglected to maintain her so far. The learned Magistrate has on the other hand found it otherwise and observed that it was clear that so far as neglect cruelty and ill-treatment etc. are concerned the applicant has failed to make out her case. The applicants case was that she was being ill-treated and beaten and ultimately driven out from his house by the husband on 12-9-65. That part of the version of the applicant-wife has been disbelieved by the learned Magistrate and consequently the observations made by the learned Sessions Judge do not appear to be so correct in that regard. We shall therefore ignore that finding of the learned Sessions Judge and proceed on the basis of the findings recorded by the learned Magistrate. ( 6 ) IT was however urged by Mr. Chhaya that once it was found that she was not ill-treated and driven out to an extent as to amount to neglect or refusal to maintain her as contemplated under sec. 488 (1) of the Code on other considerations there was hardly any justification to ask or direct the husband to pay any amount of maintenance as directed in this case. What is contemplated in sec. 488 (1) is that there must be neglect or refusal to maintain his wife he having sufficient means to do the same. 488 (1) of the Code on other considerations there was hardly any justification to ask or direct the husband to pay any amount of maintenance as directed in this case. What is contemplated in sec. 488 (1) is that there must be neglect or refusal to maintain his wife he having sufficient means to do the same. Neglect or refusal to maintain used in this section are wide enough to cover any justifiable cause established by the applicant-wife to live separate from her husband as is pointed out by the learned Magistrate though not dealt with by the learned Sessions Judge in his judgment. Now it appears that the defence of the opponent was that she was in illicit intimacy with someone else at the village of Bed and that a child born of her was not through him but by someone. Thus she was said to be living in adultery and consequently she was not entitled to claim any maintenance whatever by reason of sub-sec. (4) of sec. 488 of the Criminal Procedure Code. That sub-sec. (4) runs thus:-NO wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery or if without any sufficient reason she refuses to live with her husband. or if they are living separately by mutual consent. IN this regard the learned Magistrate has discussed the evidence and found on proper appreciation thereof that these allegations are quite baseless and in no way established. The husband cannot therefore disown his liability to maintain her on that ground. It is true that she must also show that she had sufficient reason to refuse to live with her husband as contemplated in this sub-sec. (4 ). Now it is the contention of the learned advocate for the applicant that when such reckless allegations of her adulterous behaviour are made by her husband against his wife she has every right to refuse to live with him. They amount to legal cruelty so as to be tantamount to saying that she had sufficient reason to refuse to live with him and in case he fails or neglects to maintain her even though living separately from him she can claim maintenance under sec. 488 of the Criminal Procedure Code. They amount to legal cruelty so as to be tantamount to saying that she had sufficient reason to refuse to live with him and in case he fails or neglects to maintain her even though living separately from him she can claim maintenance under sec. 488 of the Criminal Procedure Code. ( 7 ) NOW the applicant-wife had strongly resented such wild and baseless allegations affecting her moral character and had made it an additional ground that in those circumstances it was impossible for her to live with him. The allegations about her having become pregnant out of illicit relations with someone else were mere allegations and had no substance. She gave birth to a child on 6-5-66. Admittedly she had left the house of her husband on 12-9-65. The birth of child was thus within a period of nine months and no adverse inference was possible to be raised by reason of sec. 112 of the Indian Evidence Act. In other words she was living with her husband before she went to her parents place on 12 and unless it was shown otherwise the child born of her can be said to have been the child by the husband-opponent in the case. Be it said here that these allegations were made in the correspondence that went on between the parties and they continued to be persisted by him not only in the written statement but even at the time when the evidence came to be recorded by the Court. He never felt sorry about having made any such allegations against his wife. They are found to be false and utterly baseless and there is no reason for this Court to hold otherwise in the circumstances of this case. In the case of Kamala Gangalamma v. Venkatarami Reddi A. I. R. 1950 Madras 385 it was held that deliberate attribution of immorality falsely to a wife will certainly fall under the definition of legal cruelty and entitle a wife to live separately from such a husband and claim separate maintenance. In the case of Kamala Gangalamma v. Venkatarami Reddi A. I. R. 1950 Madras 385 it was held that deliberate attribution of immorality falsely to a wife will certainly fall under the definition of legal cruelty and entitle a wife to live separately from such a husband and claim separate maintenance. To the same effect is the decision in the case of Jambapuram Subhama v. Jambapuram Venkata Reddi A. I. R. 1950 Madras 394 where it was held that where a person states that a son born to his wife while she still remained his wife was not born of him at the same time not proving the impossibility of his access to her he must be taken to have deliberately attributed immorality falsely to his wife and the latter is entitled to live separately and claim maintenance from the husband. It was further held that the presumption under sec. 112 should be drawn by all Courts civil criminal and revenue governed by the Evidence Act. On that ground it can be easily said that she was entitled to live separately from her husband and since he failed to provide for her maintenance for any justifiable cause she was entitled to claim the same under sec. 488 of the Criminal Procedure Code. ( 8 ) IN the result therefore there is no substance in the revision application. and it is liable to be dismissed. Rule is discharged. .