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2010 DIGILAW 189 (JK)

Gh. Hassan Shah v. Saima Hassan

2010-04-08

GH.HASNAIN MASSODI

body2010
1. Challenge is to order of Ld. Sessions Judge Pulwama in criminal revision titled Gh. Hassan Shah v. Saima Hassan and others (Cr. Revision No.17/2007) whereby Ld. Sessions Jude has dismissed the Revision filed by the petitioner against the order of Ld. JMIC Tral dated 23.9.2006 the respondents petition under section 488 Cr. P.C. 2. The petitioner is husband of respondent No.4 and father of respondent Nos. 1 to 3. The respondents alleging that the petitioner had neglected to maintain respondents despite being possessed of sufficient means and the respondent having no source to fall back upon, approached Ld. JMIC Tral with an application under section 488 for grant of maintenance. The application was allowed on 23.9.2006 and the petitioner directed to pay an amount of Rs.900/-, 700/- and Rs.1000/- per month as maintenance allowance to the respondents. 3. The petitioner aggrieved of the order dated 23.9.2006 called it in question through medium of a revision petition before Ld. Sessions Judge, Pulwama. Ld. Sessions Judge vide order dated 31.5.2007 dismissed the petition and maintained the order directing maintenance allowance passed by the trial Magistrate in favour of the respondents. The revisional court further directed the petitioner to clear the outstanding amount within 15 days from the date of the order, failing which the amount due, would be recovered by attaching the petitioners property including his salary. 4. The petitioner throws challenge to the order of the revisional court dated 31.5.2007 as also the order of the trial Magistrate dated 23.9.2006 on the ground that the respondent No.4 had willfully and without any justification withdrawn from the association of the petitioner and had spurned bonafide offers made by the petitioner to take respondent No.4 to the marital fold and live with her as also the children born of the wedlock. It is pleaded that the trial Magistrate as also the revisional court failed to appreciate that in terms of section 488 (4) Cr. P.C, the respondent NO.4 having refused to live with the petitioner, had rendered herself disentitled from any maintenance by the petitioner. 5. The petition, at the request of Ld. Counsel for petitioner, is treated as one u/s 561-A Cr.P.C. 6. Heard and considered. 7. Chapter XXVI Code of Criminal Procedure deals with the subject of the maintenance of wives children and parents. 5. The petition, at the request of Ld. Counsel for petitioner, is treated as one u/s 561-A Cr.P.C. 6. Heard and considered. 7. Chapter XXVI Code of Criminal Procedure deals with the subject of the maintenance of wives children and parents. The law makers alive to the importance of the subject, have found it necessary to make an obligation, essentially civil in nature, enforceable under the Code of Criminal Procedure and incorporated Chapter XXIV in the Code. The offer is to inculcate a sense of urgency in the matters involving maintenance of wives, children and parents and also to provide for simple and hassle free procedure for enforcement of the right. Section 488 empowers a Magistrate to order a person having sufficient means to maintain/pay maintenance allowance to his wife, minor child (children) and parents provided he despite sufficient means is found to have neglected or refused to maintain his wife, children or parents as the case may be. If a wife of her own accord without any lawful justification stays away from her marital home, her husband obviously can not be said to have neglected or refused to maintain her or saddled with the duty to maintain her. Section 488 is intended to be pressed into service where there is element of neglect or refusal on the part of the person otherwise under legal and moral obligation to provide maintenance to the wife, children or parents. It is to give expression to the legislative intent that section 488 (4) declares the wife disentitled to receive any maintenance allowance if she is living in adultery or if without any sufficient reason, she refuses to live with her husband or is otherwise living separately with mutual consent. In an application under section 488 Cr. P.C the non applicant or husband can set up a case that his wife or the applicant without any sufficient reason refuses to live with her husband and volunteer to take the wife to her marital home and live with her and maintain her at the marital house. In other words the non applicant or husband can make a bonafide offer to maintain the applicant or his wife. In the event the Magistrate having regard to all surrounding circumstances, is of the opinion that the offer made by the husband or non applicant is not tainted with malice, ill-will but is sincere and bonafide. In other words the non applicant or husband can make a bonafide offer to maintain the applicant or his wife. In the event the Magistrate having regard to all surrounding circumstances, is of the opinion that the offer made by the husband or non applicant is not tainted with malice, ill-will but is sincere and bonafide. The Magistrate may give the applicant or wife an opportunity to restore marital relations, go to her marital house and remind her that her failure to respond to the bonafide offer made by the husband, would be at the risk of failure of her application for maintenance. 8. It has been observed in Shail Kumari v. Krishan Bhagwan Pathik (2008) 9 SCC 632: "Again, maintenance is a right which accrues to a wife against her husband the minute the former gets married to latter. It is not only a moral obligation but is also a legal duty cast upon the husband to maintain his wife. Hence, whenever a wife does not stay with her husband and claims maintenance, the only question which the court is called upon to consider is whether she was justified to live separately from her husband and still claim maintenance from him? If reply is in affirmative, she is entitled to claim maintenance.." 9. The question before the Magistrate thus, in a case where the husband makes a bonafide offer to his wife to take her to her marital house, is to see whether the offer is sincere and bonafide and further whether there is sufficient reason for the wife not to live with her husband. Once the Magistrate is of the opinion that the wife has sufficient reason to stay away from the husband the Magistrate is to pass an order for maintenance regardless of the offer made by the husband. Section 488 (3) 2nd proviso deals with a such situation and deserves to be noticed: "Provided further if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing." 10. It follows that a mere offer by the husband to maintain his wife on condition of her living with him does not ipso facto help the husband to wriggle out of his responsibilities to pay maintenance allowance to his wife. The husband has to convince the court that the offer is sincere and bonafide and that the wife does not have sufficient cause to refuse to live with him. The wife in turn has right to persuade the Magistrate that she has a valid ground to refuse to live with her husband. The Magistrate has to apply his mind to the case set up before him by the husband as well as the wife and thereafter make an order including if required an order for maintenance notwithstanding such offer. The Magistrate in the later case has to record his satisfaction that there is just ground for making an order under section 488 Cr. P.C. 11. The Magistrate when confronted with an "offer" made by the husband in proceedings for maintenance under section 488 Cr.P.C. is expected to be alive to the requirement that the "offer" reflects serious resolve of the husband to make the change in his conduct and behaviour that compelled the wife to leave the marital home and withdraw from the society of the husband. 12. The offer envisioned under section 488 Cr.P.C. is not a mere willingness of the husband to share a loaf with his wife or allow her to live under the same roof. It implies readiness of the husband to offer the wife a warm and affectionate environment that enables her to lead a life of dignity free from all sorts of violence, pain -- both mental and physical and above all free from want and deprivation. This is why the law conceives situation, where the Magistrate may award maintenance allowance regardless of the "offer" made by the husband to take his wife to her marital home. The Magistrate thus while dealing with a question like one that arises for consideration, in the present petition, has to proceed with caution and decline prayer for maintenance only if the "offer" made by the husband, has all the said attributes. 13. The Magistrate thus while dealing with a question like one that arises for consideration, in the present petition, has to proceed with caution and decline prayer for maintenance only if the "offer" made by the husband, has all the said attributes. 13. In the present case the Magistrate as well as the revisional court have taken due notice of the offer made by the husband to take the respondent No.4 alongwith other respondents to her marital home and in the attending circumstances found the wife to have sufficient ground within the meaning of section 488 (3) 2nd proviso and section 488 (4) Cr. P.C. Both the courts found that the petitioner was a drug addict and was not ready and willing to give up drug addiction despite requests and entreaties of the respondent No.4 and the other well-wishers of the family. The respondent No.4 convinced the court below that she felt insecure in the company of the petitioner as the petitioner after making use of the drug frequently turned violent. The courts accordingly held the grounds urged by the respondent No.4 to refuse to live with the petitioner, convincing and the respondent No.4 to have a sufficient cause for refusing to live with the petitioner. There is no reason to record any disagreement with the conclusions arrived at by the Ld. Magistrate and the revisional court mere so when the conclusions so drawn found independent support from the material available on the file including the written compromise entered into by the parties in a matter under Guardian and Wards Act where the petitioner undertook not to consume any drugs. 14. This Court would be slow in interfering with the conclusions arrived at by the trial Magistrate and the revisional court because these courts have first hand information regarding the conduct of the parties. The court of the first instance has an opportunity to watch conduct of the parties to a matrimonial dispute as the parties invariably attend the proceedings on each and every day of hearing. It is the trial Magistrate and the revisional court who are better placed to opine whether offer made by the husband to his estranged wife, to take her to her matrimonial home, is bonafide and sincere and whether the wife has a valid ground and sufficient reason to refuse to live with her husband. 15. It is the trial Magistrate and the revisional court who are better placed to opine whether offer made by the husband to his estranged wife, to take her to her matrimonial home, is bonafide and sincere and whether the wife has a valid ground and sufficient reason to refuse to live with her husband. 15. For the reasons stated above, the impugned orders do not suffer from any irregularity, impropriety or illegality as would call for interference by this Court. 16. So viewed, the revision petition being bereft of any merit is hereby dismissed. The record be sent down and revision record file consigned to records.