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2008 DIGILAW 188 (JK)

Maharaj Krishen Raina v. Muni Devi Sharma

2008-05-14

J.P.SINGH

body2008
1. Petitioner has filed this petition questioning Judicial Magistrate, 1st Class (Special Railway Magistrate) Jammus order of May 11, 2007 directing the petitioner to pay the respondent Rs.900 per month as interim maintenance under Section 488 of the Code of Criminal Procedure. 2. Petitioners counsels short grievance against the Magistrates order is that the learned Magistrate had ignored the law laid down by this Court in Salamant Maish v. Neena 2003 (Supp.) JKJ 540 (HC) and the findings recorded by the Civil Court in File No. 27/N decided on February 1, 2003 passing a decree of judicial separation in favour of the petitioner and against the respondent, while deciding respondents application seeking interim maintenance under Section 488 of the Code of Criminal Procedure. 3. Respondents counsel supports learned Magistrates order saying that the merits of petitioners allegation of respondents living in adultery was not germane while considering the grant or refusal of an application seeking interim maintenance under Section 488 of the Code of Criminal Procedure. 4. I have considered the submissions of learned counsel for the parties in the light of the material placed on records. 5. Before dealing with the question as to the legality, justification or otherwise of Magistrates impugned order, regard needs to be had to the law laid down by this Court in Salamant Maishs case and the findings recorded by the Civil Court on the matrimonial litigation which the parties had contested before District Judge, Pulwama. 6. While analyzing the legal position as to the applicability or otherwise of the provisions of Section 488 (4) of the Code of Criminal Procedure, while dealing with an application seeking an order for payment of maintenance, this Court had held as follows: "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 of that order and enforcement of the order of maintenance. Sub-section (4) lays bar to the entitlement of wife for such maintenance, if any of the following exigencies is proved: 1. She is living in adultery. 2. Without sufficient reasons she refused to live with her husband. 3. If they are living separately by mutual consent. 4. Sub-section (4) lays bar to the entitlement of wife for such maintenance, if any of the following exigencies is proved: 1. She is living in adultery. 2. Without sufficient reasons she refused to live with her husband. 3. If they are living separately by mutual consent. 4. 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. Subsection (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 adultery, 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 disentitles the wife from any claim of allowance from her husband after it is proved that she is living in adultery. Once the statute lays a perfect bar on the entitlement of wife, question of passing any order in her favour in terms of Sub-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 nonest. 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. 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. Naebammal, 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 under Section 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)." 7. Learned District Judge, Pulwama had raised seven issues to decide the controversy which had arisen between the parties. These issues read thus: "1. Whether the defendant right from 1999 suddenly changed her attitude and started maltreating the plaintiff and his other family members. Whether the said conduct of the defendant amounts to cruelty which has made the life of the plaintiff and his other family members miserable? OPP 2. Whether the defendant accused falsely the plaintiff of living in adultery and also accused him falsely of attempting to set her ablaze by dousing her in kerosene oil? OPP. 3. Whether the defendant remains continuously out of the plaintiffs house without any explanation? OPP. 4. Whether the defendant approached with those false allegations to the Ikhwanies. OPP 2. Whether the defendant accused falsely the plaintiff of living in adultery and also accused him falsely of attempting to set her ablaze by dousing her in kerosene oil? OPP. 3. Whether the defendant remains continuously out of the plaintiffs house without any explanation? OPP. 4. Whether the defendant approached with those false allegations to the Ikhwanies. STF people and security forces who in turn summoned the plaintiff and harassed him and his family members? OPP. 5. Whether the defendant has started to live with another person namely Mohan Lal with the intention to damage the reputation of the plaintiff and his family? OPP. 6. Whether the defendant also approached with these allegations to Sub-Divisional Police Officer, Shopian who summoned the plaintiff in P/s Shopian but gave a finding that the defendant is at fault? OPP. 7. Relief." 8. After evaluating the evidence led by the parties, learned District Judge had found the petitioner to have succeeded in proving issue Nos. 1, 3, 4, 5 & 6. It accordingly passed a decree for judicial separation in favour of petitioner and against the respondent. 9. In view of the findings of the Civil Court castigating the respondent for her living with another person Mohan Lal with the intention to damage the reputation of the petitioner and his family, I do not find any justification in learned Magistrates exercising jurisdiction in passing an order for interim maintenance when the respondent had not placed anything on records to prime facie satisfy the Magistrate of any change in circumstances warranting his taking a view contrary to the concluded findings of the Civil Court holding that the respondent had, on her own, started living with another person Mohan Lal by name. 10. Learned Magistrate has further erred in not appreciating the law laid-down by this Court in Salamant Maishs case ensuring decision of the main case at the earliest rather than granting interim maintenance to the respondent when she had not placed any material on records suggesting any change in circumstances, justifying issuance of interim order of maintenance in favour of the respondent. 11. Allowing this revision petition, I would accordingly set aside learned Judicial Magistrate, 1st Class (Special Railway Magistrate) Jammus order of May 11, 2007.