Hukumchand vs Tarabai

Nevaskar, J.—This is a reference made by the Additional Sessions Judge Indore u/s 438 Criminal Procedure Code in respect of a proceeding u/s 488 Criminal Procedure Code wherein applicant Tarabai had applied for maintenance against her husband Hukumchand.

The application was submitted on 4-7-1955. Reply to this application was submitted on 7-12-1955. In this reply Hukumchand alleged that he had divorced the applicant for her adulterous conduct and that she no longer was his wife and that for that reason could not claim maintenance from him.

On the day the reply was filed the applicant Tarabai was examined in respect of her main application. In her cross-examination she was asked about the fact of divorce and she slated that by fraud a Farakati had been secured by Hukumchand and that at the time of the incident five or six members of their caste and her own brother from Dhar were present.

The opponent produced from his possession a document purporting to be an application addressed to Court wherein the applicant Tarabai admits that a Farakati had been given to her and that Hukumchand and herself were no longer man and wife. This document according to the opponent was given to him by Jagannath the brother of the applicant when the Farakati took place.

The Magistrate who tried the case held that the alleged plea of divorce set up by the opponent was not made out, He, therefore, awarded to the applicant maintenance at the rate of Rs. 20 per month from the date of the application.

On a revision-petition being filed in the Court of Sessions against this decision the learned Additional Sessions Judge did not agree with the view of the trying Magistrate as regards the question of Farakati, He held that the alleged Farakati was established by the admission of the applicant both in Ex. D/2 and in Court. He further held that if she wanted to avoid the effect of the admission by setting up fraud the fact about a fraud as well as the circumstances in which the same was committed ought to have been established. The learned Judge attached special significance to the fact that at the time of Farakati 5 or 6 persons of the caste as well as applicant''s brother were present. He therefore came to the conclusion that the applicant ceased to have the status of a wife of the opponent and could not therefore claim maintenance. He has therefore made this reference.

The applicant Tarabai in her statement admits that Hukumchand had obtained Farakati from her in the presence of 5 or 6 persons including her brother who had come from Dhar. Mukumchand in his statement asserted that there had been divorce between him and Tarabai. He also produced document D/2 dated 6-11-1954 which purports to bear the signature of the parties. The application is addressed to the Magistrate''s Court and is stated to be made in this case. There Tarabai admits the divorce and says that there had been settlement by mutual agreement and that she does not want to proceed with the proceeding. Tarabai did Dot submit this in Court and it appears that she resiled from it

The Lower Court did not therefore act on this document but he relied upon the admission of Tarabai in her cross-examination wherein the fact of there being a divorce in the presence of her brother and five or six persons was admitted. She put forward a plea of fraud.

The jurisdiction of the Magistrate to order payment of maintenance to a wife depends upon the subsistence of the relation of husband and wife between them. It is therefore not only permissible but incumbent upon the Magistrate to determine whether at the time he proposes to order maintenance to a woman there subsists a relation of husband and wife between her and the person against whom the order is to be pissed. It is not enough to find that he was her husband when the proceedings commenced. If during the pendency of the proceedings the relationship ceases the Magistrate no longer is entitled to award maintenance,

As held in in the matter of the petition of Din Mohammad, (I.L.R. 5 All. 226) the existence of conjugal relationship of husband and wife is condition precedent to a right of maintenance, In that case Mohammad, J, stated:--

As essential to continued operation, as to the original making of an order of maintenance, that the recipient of the allowance should be a wife at the time for which maintenance is claimed, and consequently.........a Magistrate must, when a question of divorce arises, determine on such evidence as may be before him, whether there has or has not been a legally valid divorce.

The moment the conjugal relationship ceases, the liability to pay maintenance comes to an end.

This is well-settled as held in Emperor vs. Shaikh Baud (A.I.R. 1921 Nag 7 ) and other cases cited in Janni Bibi Vs. Mohammed Abdul Rahaman,

In view of this position in law the question which ought to be considered is whether in the present case, after the petition was made, the conjugal relationship came to an end. The statement of Tarabai read along with that of Hukumchand clearly establishes the fact that there was Farakati between Tarabai and her husband by mutual consent in the presence of five or six persons and Tarabai''s own brother.

After having admitted the incident burden shifted upon her to prove in what manner the opponent committed fraud. She did not examine her brother or any other person to establish this. Even her statement and the cross-examination of Hukumchand failed to bring out these allegations of fraud.

In view of this there was no material before the Magistrate to bold that the divorce was produced by fraud. He had therefore no longer jurisdiction to award maintenance from the date of the order.

As regards award of maintenance for a certain period prior to the date of divorce I deem it proper that she should establish her right in a civil court where the entire question will be thrashed out, the award of maintenance for such a period being discretionary.

The reference is therefore accepted and the application for maintenance is dismissed. No order as to costs.