Gani Ali vs Savabai Gani and Another

B.J. Shethna, J.—Whether the learned Magistrate is bound to hold inquiry in every case when a person offers to maintain his wife on condition of her living with him as par the second proviso to Sub-section (3) of 125 Cri. P.C. 1973 ? If yes, the second question is, in proceedings initiated by wife for the recovery of the maintenance allowance, the learned Magistrate is required to hold the inquiry ?

Mr. Shah learned Advocate for the petitioner has raised a contention before ice that before passing the impugned order the learned Magistrate has not made any inquiry as contemplated under second proviso of Section 125(3) Cr. P.C inasmuch as the learned-Magistrate has not called upon the wife to ascertain her with that she if willing to go and stay with her husband or not when the petitioner has offered to maintain his wife on the condition that she should live with him. Therefore, the impugned order pared by the learned Magistrate is required to be quashed and set aside. In support of his contention he has relied upon the judgment of Calcutta High Court reported in Rupchand Mahato Vs. Charubala Mahatani, and has also relied upon the unreported judgment of thin Court (Coram : J.M. Sheth, J., as then he was) in Crl. Revision Application No. 246 of 1974 decided on 5-7-1974.

Few relevant facts are required to be considered while dealing with the aforesaid contention railed by Mr. Shah which are as under :

(I) On 17-5-1985 the wife was driven out by the husband from his house. (2) On account of her desertion the wife filed a maintenance application being Crl. Mile. Application No. 107 of 1985 in the Court of learned J.M F.C., Dwarka, (3) After the evidence of the wife was recorded, her husband gave divorce, thereafter on 24-9-1987 the .learned Magistrate awarded maintenance of Rs. 300/- per month to the wife. (4) Aforesaid order of the learned Magistrate wag challenged by the husband before the learned Addl. Sessions Judge in Crl. Revision Application, which was differed on 16-1-1990. (5) The husband has challenged the aforesaid order before this Court by filing Spl. Civil Application No. 317 of 1990 which is admitted by this Court on 4-2-I99I and it was fixed for hearing on 15-2-1991; but no interim relief was granted.

On 28 1-1989 the wife filed Crl. Misc. Application No. 5 of 1989 before the learned J.M.F.C., Dwarka for recovering her maintenance amount in a gum of Rs. 2.770/- for the period from 14-4-1988 to 20-1-1989 and for taking proper legal action in the matter along with the copy of the judgment of the learned Magistrate in Crl. Misc. Application No. 107 of 1985 by which, the was awarded maintenance. Copy of the said application ii ordered to be kepi on record of this case. In that recovery application, the petitioner husband appeared before the learned Magistrate in response to the order passed by him and submitted an application Exh. 8 inter alia contending that he has given Talaq to his wife and she has not accepted it, therefore, as per Muslim Law, he is entitled to keep 4 wives and she can stay with him as his wife. He is prepared to call her back and to keep her with him. Therefore. Recovery Application be rejected and the may be ordered to stay with him. The learned Magistrate by his order dated 31-1-1990 rejected the application Exh. 8 of the husband as according to him only at the late stage of making payment to his wife he has submitted such an application and he has not even made any payment or he has deposited any amount with the Court during the intervening period. It is not proved that he has made any bonafide or proper attempt to call her back.

Aforesaid order passed by the learned Magistrate has been challenged by the petitioner in this petition which ii Died under Article 226 of the Constitution of India. On 8-3-S990 this Court issued notice and granted ad-interim relief till 27-3-1990 condition that the petitioners shall deposit in the trial Court Rs. 1.200/- towards the arrears of maintenance and Rs. 200/- by way of costs of the wife, for coming to High Court. However, it is stated at the bar by Mr. Shah that said amount war paid thereafter, paid interim relief was extended from time to time and on 11-7-1990 this Court ordered to issue Rule and made it returnable on 8-8-1990 and con tinned the interim relief on condition that the petitioner shall deposit the balance amount of arrears of maintenance in the trial Court. Said arrears was not deposited so far as stated by Mr. Popat learned Advocate appearing for the wife.

In my view the learned Magistrate has rightly held that the judgment of Calcutta High Court in the case of Rupchand Mahato (supra) is not applicable to the facts of the present case. Mr. Shah has relied upon the unreported judgment of this Court (Coram : J.M. Sheth), J.), however, the facts of the present case are entirely different and therefore, said judgment is not desirable all applicable and therefore, it is not desirable to deal with the said judgment in detail.

It is to be noted that the wife was driven out by her Husband on 7-5-1985 and therefore, she has filed an application for maintenance before the learned Magistrate in the year 1985 and the husband appeared before the learned Magistrate and contested the application and only after the evidence of the wife was recorded, he gave divorce to his wife which was ought to be sent by post but she refused to accept it, und looking to the evidence led before him, the learned Magistrate has awarded maintenance to the wife by the judgment and order dated 28-9-1987. Said order of the learned Magistrate awarding maintenance wag challenged by the husband in the Revision Application No. 95 of 1987 which came to be dismissed on 16-1-1890 before the learned Addl. Sessions Judge. Before the learned Addl. Sessions Judge, it was not contended that even after the divorce he is ready and willing to take his wife back. But as the wife filed an application for recovering the amount of maintenance before the learned Magistrate on 20-1-1989 only with a view not to pay maintenance, the husband has coma out wish an application, Exh. 8 dated 22-6-1989 before the learned Magistrate god expressed his desire to take her back. At this stage it is required to be noted that while dismissing the Revision Application of too husband the learned Addi. Sessions Judge has observed in his judgment dated 16-1-1990 that with a view to see that he has not to pay the maintenance, he has given divorce 10 his wife. And after she was driven out, he has not shown his readiness and willingness to take her back and to maintain her. Thus even after filing of an application Exh. 8 dated 22-6-1989 before the learned Magistrate, he is not at all interested to call his wife back. The learned Magistrate has rejected the application Exh. 8 dated 31-1-1990 only after the learned Addl. Sessions Judge dismissed the Revision Application of the husband challenging the earlier order passed by the learned Magistrate awarding maintenance to the wife on 16-1-1990.

What inquiry should be held by the learned Magistrate in such facts and circumstances ? The wife had produced the original copy of the earlier Judgment and order passed by the learned Magistrate by which she has been awarded maintenance along with her recovery application before the learned Magistrate. Therefore, it was known to the learned Magistrate that why the wife wax awarded maintenance because she was driven out by her husband with the clothes put on by her on 17-5-1985. The petitioner is such husband who tried to take disadvantage of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which cams into force and gave Talaq to his wife. Merely by submitting an application (Exh. 8) stating that as his wife has not accepted Talaq, therefore, he is ready and willing to take her back and maintain her would be sufficient for the learned Magistrate 10 hold an inquiry? As Mr. Shah submitted that the learned Magistrate ought to have called upon the wife to explain the position and if, she had refused to live with her husband then she had to assign grounds for it and the learned Magistrate was required to consider the laid grounds. The face are 10 eloquent and apparent that the petitioner ii such type of husband who wants to evade the payment of maintenance to his wife. It would not lie in the month of such husband to lay that even after he has given divorce, he ii prepared to take his wife back and prepared to maintain her if she is prepared to stay with his wife became she has not accepted the divorce. Any reasonable and prudent in such sets of circumstance will refuse to ask the wife whether she is willing to go with her husband or not and if she is not ready and willing then on what ground she is not ready and willing ? Because when the answer is so obvious that any woman would not like to go and stay with such a husband who has already given her divorce and had driven her out with the clothes put on by her. Therefore, I am of the view that the learned Magistrate ii not required either to hold an inquiry or to call upon the wife to ascertain whether she is ready and willing to go to her husband''s home or not and if she is not ready and willing to go to her husband''s house, then why the ii not prepared to go to her husband? The second question arises the matter is that when she herself filed a Recovery Application and in the same if the husband cornel with such type of lame excuses and defenses that he wants to take back his wife, only with a view to avoid payment of maintenance, in such case the Seamed Magistrate is not required to call upon the wife to assert from her whether she is read? and willing to go to her husband or not ?

Such type of inquiry or exercise by the learned Magistrate is contemplated in cases where once the learned Magistrate has awarded maintenance and thereafter some special further development has taken in the matter and the circumstances have been changed, and if the husband comes out with a bonafide offer to maintain his wife on condition of her living with him in such cases only and if the Magistrate is satisfied, that the wife is required to say whether she is ready and willing to slay with her husband in the changed circumstances. But before that the Magistrate has to see that the husband was regularly paying the maintenance amount which is awarded against him till the dale on which he comes out before the Magistrate with his offer to maintain his wife on condition of her living with him.

However, it clearly appears from the order passed by the learned Magistrate on application Bin. 8 that the learned Magistrate has beard the petitioner husband as well as the wife through their respective Advocates And keeping in mind the entire facts and circumstances of the case he found that the application Exh. 8 submitted by the husband is not bonafide and therefore, rejected the same. No other view is possible that the view taken by the learned Magistrate while dismissing application Exh. 8 and, this Court will not interfere with the impugned order in exercise of its powers under Article 227 of the Constitution of India.

Second proviso to Sub-section (3) of Section 125, Cr. P.C. does not provide that in each and every case, the learned Magistrate has to hold an inquiry. It all depends upon the facts and circumstances of the case. In each case the learned Magistrate has to come to his own conclusion that whether he should call upon the wife when the offer is made by the husband to maintain his wife on condition of living with him and if he is satisfied that in the case before him, the wife is required to be called upon then only he has to call upon the wife to mats that she is willing to stay with her husband or not. If the wife refuses to live with her husband, then the learned Magistrate has to consider the ground of refusal staled by the wife and thereafter the learned Magistrate has to pass an appropriate order. Second proviso to Sub-section (3) of Section 125 Cr. P.C. itself also provides that notwithstanding such offer made by the husband to maintain his wife, on condition of her living with him, the learned Magistrate can pass such order u/s 125 Cr. P.C.

Explanation to the said proviso also provides that if the husband has contracted marriage with another woman, or keep a mistress, it shall be considered to be just ground for his wife''s refusal to live with him.

Admittedly, in this case the husband has given divorce to his wife and therefore, it will be a just ground for the wife of the petitioner to refuse to live with him, far which the wife is not required to be heard at all and the learned Magistrate was not required to hold any injury for the fame, became these facts were very much present before him in the sense that the grounds on which the judgment and order granting maintenance was passed in favour of the wife was known to him.

In view of the above discussion, there is no merit and merit and substance in this application and therefore, it is required to be dismissed. Accordingly this petition fails and dismissed. Rule discharged.

Interim relief granted earlier stands vacated.

Having regard to the facts and circumstances of this case, the petitioner is directed to pay Rs. 1000/- to the respondent No. 1 wife towards costs of this petition.