This is a reference made by learned Sessions Judge, Jammu on 28-01-2002, whereunder the order passed by Forest Magistrate, Jammu has been recommended to be quashed. During the course of proceedings u/s 488 Cr.P.C., the respondent-husband filed an application for permission of the court to establish that the petitioner-wife is living in adultry. The learned Magistrate disallowed the application on that stage and held that the Magistarial court has first to pass an order of maintenance when sufficiency of means and neglect is proved by the wife. According to the Magistrate, it was after the passing of this order that court could advert to the fact as to whether or not the wife because of living in adultry was entitled to maintenance. According to the learned Magistrate in the event of adultery having been proved, the court would revoke the order. When a revision was filed before the court of Sessions, it came to finding that Section 488 Cr.P.C. cannot be read independent of sub-section (4) and adultry which is defence available to the husband on its proof, cannot be a claim of the wife for maintenance. Thus according to learned Sessions Judge made this reference after making the observation as above. 2. I have heard the learned counsel for the parties and gone through the file. Section 488 Cr.P.C. in general first lays down the ingredients to be satisfied for the claim under this provision. On proof of sufficiency of means of income of the husband and his neglect or refusal to wife of the claim, the Magistrate can grant monthly allowance by way of maintenance. Sub-section(3) lays down procedure for execution or that order and enforcement of the order of maintenance. Sub-section (4) lays bar to the entitlement of wife for a such maintenance, if any of the following exigencies is proved : - 1. She is living in adultry. 2. Without sufficient reasons she refused to live with her husband. 3. If they are living separately by mutual consent. 3. However, in explanation to the proviso supplied to sub-section (3), the fact that the husband has contracted another marriage or keeps a mistress will be taken to be just a ground on behalf of wife for refusal to live with the husband.
3. If they are living separately by mutual consent. 3. However, in explanation to the proviso supplied to sub-section (3), the fact that the husband has contracted another marriage or keeps a mistress will be taken to be just a ground on behalf of wife for refusal to live with the husband. This court is called upon to answer the question as to whether the proceedings in terms of section 488 Cr.P.C. can be bifurcated as suggested by the Magistrate or have to be taken simultaneously in one go. Sub-section(4) seems to be quite clear. This reads as under:- "(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultry, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent." 4. A reading of above sub-section shows that this is a negative provision which dis-entitles the wife from any claim of allowance from her husband after it is proved that she is living in adultry. Once the statute lays a perfect bar on the entitlement of wife, question of passing any order in her favour in terms of section (1) will not arise. Rule of interpretation in general envisages that provision is to be read as a whole and on its grammatical interpretation if we maintain the order of learned Magistrate, then sub-section (4) supra becomes redundant and bar created by this sub-section is non-est. I am sure, that section 488 Cr.P.C. lays down its own procedure, once a bar to the entitlement of allowance is created by the provision determination of entitlement despite such bar will be doing violence to the statute. 5. I have noticed a judgment delivered by Allahabad High Court in case Ramjit Malviya v. Smt.Munni Devi Malviya, AIR 1959 All 767. In this judgment what was taken into account was the wifes refusal to live with the husband without any sufficient reason. Allahabad High Court held that in absence of sufficient reasons established for living separately sub-section (4) supra creates a bar to the claim of wife. Madras High Court in case Kandaswami Gounder v. Nacbammal, AIR 1963 Madras, 263, also came across this point. Here in this case point in issue was as to whether second marriage by husband was a sufficient ground for wife to live separately.
Madras High Court in case Kandaswami Gounder v. Nacbammal, AIR 1963 Madras, 263, also came across this point. Here in this case point in issue was as to whether second marriage by husband was a sufficient ground for wife to live separately. While dealing with this point, Madras High Court held that a wife who refuses to live with her husband on account of his re-marriage is not prevented under sub-section (4) for claiming maintenance under sub-section (1). However, it was observed that sub-section covers the whole of section 488 Cr.P.C. including Sub-section (1).. Taking clue from the above two judgments and inspired by the text of the provision I have no doubt in my mind that Magisterial courts have to make their best to culminate the proceedings u/s 488 within shortest possible time and an attempt is also required to be made to avoid multiplicity of proceedings. The ingredients of these sections are well known to all and sundry. Let exception to the general rule which are promulgated by sub-section be also registered in the first instance and whole of the proceedings be completed within one go and in that view of the matter I hold that sub-section (4) must be read in such a manner so as to cover the whole of section 488 including sub section (1). I accordingly allow the reference and quash the order of Forest Magistrate, Jammu dated 29-12-2000. Let it proceed with the case in the manner directed above.