ORDER
(1) This criminal revision, filed by Shrimati Kamla Khanna, through her father and next friend Amar Nath Kapur, is directed against the judgment of learned Additional Sessions Judge, Delhi, affirming on revision the decision of the trial Court, whereby an application under Section 488 of the Code of Criminal Procedure, filed by the petitioner against Pran Nath Khanna, respondent was dismissed.
(2) The brief facts of the case are that Shrimati Kamla Khanna, petitioner, and Pran Nath Khanna, respondent were married in Delhi on 24th February 1949. They have had no issue from the marriage. They lived together from 1949 till 1957. In 1957, when the parties were living at Calcutta where the respondent was posted as an Estate Officer, Shrimati Kamla was brought to Delhi and was left at her father Amar Nath's place. In April 1959, the respondent was posted in Delhi. In June 1960, a Reception Order, as envisaged by Section 7 of the Indian Lunacy Act, 1912, was made by the Additional District Magistrate, Delhi, in respect of Shrimati Kamla and on 23rd June 1960 Shrimati Kamla was admitted in the Mental Hospital, Ranchi, in pursuance of that order. During her stay in the hospital the respondent used to pay Rs. 200 per mensem to meet the expenses of Shrimati Kamla. Besides that, the Delhi Administration contributed Rs. 150 per mensem. On 21st February 1961 the Additional District Magistrate of Delhi passed the following order, presumably under Section 33 of the Indian Lunacy Act, 1912, in the presence of Amar Nath Kapur and the respondent:--
'The letter received from the Medical Superintendent, Mental Hospital, Ranchi, has been shown to btoh the parties. Shri Amar Nath Kapur is prepared to bring Shrimati Kamla Khanna from the Mental Hospital, Ranchi, and keep her with him with a view to take all possible steps to restore her to mental health. He is also prepared to execute a bond in the sum of Rs. 2,000 undertaking to make sure that Shrimati Kamla Khanna neither harms herself nor does she harm any one else. Shri P. N Khanna has no objection if Shri Amar Nath Kapur is allowed to bring Shrimati Kamla Kapur from the Mental Hospital, to his house unless he himself expresses his willingness in writing to take her because he was no elderly person at his house to look after Shrimati Kamla Khanna. The Mental Hospital, Ranchi, may be directed to hand over Shrimati Kamla Khanna to her father Shri Amar Nath Kapur who will personally go to Ranchi to bring her from there. This order should be issued only after Shri Amar Nath Kapur executes a bond in the sum of Rs. 2,000 (rupees two thousand only) as already mentioned above. Shri Amar Nath Kapur has also given me an assurance that he will nto take Shrimati Kamla Khanna to the house of Shri P. N. Khanna unless the latter asks in writing that she may be sent to him.'
On 28th February 1961, Shrimati Kamla was brought by her father Amar Nath Kapur to his house in Delhi. Since she is lying with her parents. It is now the admitted case of the parties that Shrimati Kamla still continues to be insane and the respondent has nto paid and money for the maintenance of Shrimati Kamla ever since she was brought from the Mental Hospital, Ranchi, by her father. It has also nto been disputed before me that the respondent was getting ttoal emoluments of Rs. 896 per mensem in 1961 and at present is drawing Rs. 1,165 per mensem.
(3) On 10th November, 1961, Amar Nath Kapur, father of Shrimati Kamla, filed application under Section 488 of the Code of Criminal Procedure for award of Rs. 500 per mensem as maintenance for her. The ground, on which maintenance was sought, was that the respondent had refused and neglected to maintain Shrimati Kamla or to contribute any amount towards her living expenses. A ground was also taken that the respondent had treated Shrimati Kamla with cruelty as a result of which she developed Schizophrenia.
(4) The application was resisted by the respondent and he denied the allegation that he had treated Shrimati Kamla with cruelty. According to the respondent Shrimati Kamla's father Amar Nath Kapur voluntarily approached the authorities and managed to take her to this house under the pretext of rehabilitation. The respondent denied his liability to pay the amount claimed for.
(5) The trail Court found that the allegation of cruelty had nto been substantiated. Likewise, it was found that Shrimati Kamla had nto been willfully neglected by the respondent and that the respondent had nto refused to maintain her. The application was, consequently, dismissed. On revision the learned Additional Sessions Judge affirmed the conclusion of the trial Court that the allegation of cruelty had nto been substantiated. Further in the view of the Additional Session Judge the order dated 21st February 1961 of the Additional District Magistrate showed that Amar Nath Kapur brought Shrimati Kamla from the hospital at his own responsibility. It was inferred from the above order that Shrimati Kamla was being kept separately from the respondent by mutual consent and as such sub-section (4) of Section 488 of the Code of Criminal Procedure was attracted. The Additional Sessions Judge also took the view that in case on order for payment of maintenance was made, it would be tantamount to burdening the respondent with the liability to maintain nto only his wife but also her parents.
(6) I have heard Mr. Kishori Lal on behalf of the petitioner and Mr. Arora on behalf of the respondent and have also been taken through the material on record. Amar Nath Kapur, father of Shrimati Kamla, it would appear from the record, after getting her discharged from the hospital, wrtoe three letters, Exhibits Pb, Pc and Pd, dated 12th September 1961, 22nd September 1961 and 7th October 1961. In the course of all three letters Amar Nath Kapur stated that he was nto in a position to meet the expenses for the maintenance of Shrimati Kamla and that the respondent should pay money for meeting those expenses. Amar Nath also added in letter Exhibit Pb that it would be much better if Shrimati Kamla was taken by the respondent to his house so that the affection of her husband might accelerate her process of recovery.
It appears that the respondent did nto send any reply to letters Exhibits Pb and Pc, and consequently Amar Nath Kapur had send letter Exhibit Pd by registered post. The respondent thereafter sent reply dated 29th October 1961 by registered post. In that letter the respondent stated that in view of the undertaking given by Amar Nath Kapur at the time the order dated 21st February 1961 was made by the Additional District Magistrate, Amar Nath Kapur was nto entitled to claim any maintenance for Shrimati Kamla. Question, in the circumstances arises, as to whether the act of Amar Nath Kapur bringing Shrimati Kamla to his house in pursuance of the said order disentitled him to claim any maintenance for her from the respondent.
In this respect I find that the respondent issued instructions after Shrimati Kayla was admitted in the Mental Hospital, Ranchi, that her parents should nto be allowed to meet her and no intimation about her condition be sent to her father. It would also appear that a letter was received by Amar Nath from the Medical Superintendent of Mental Hospital, Rachi that Shrimati kamla was nto likely to further improve by staying in the Mental Hospital and being nto violent could be looked after at home. As the respondent was reluctant to keep Shrimati Kamla at his house on the ground that there was no one there to look after her, I find ntohing objectionable or wrong on the part of Amar Nath in bringing Shrimati Kamla to his house so that her mtoher and father might look after her. In fact, that seemed to be the only feasible and humane approach in the matter. I may in this context refer to the statement of Dr., R. Prasad (P.W.6), who is a Member of the Royal College of Physicians of Ireland and a diploma-holder in Psychological Medicines. Shrimati Kayla had been under his treatment and according to him, if Shrimati Kayla was kept in the hospital, her condition was likely to deteriorate.
(7) It was also difficult to spell out any inference from the order dated 21st February, 1961 of the Additional District Magistrate that the respondent was absolved of liability to meet the expenses of the maintenance of Shrimati Kamla. The respondent had been paying Rs. 200 when Shrimati Kamla was in the Mental Hospital at Ranchi and his attitude in refusing to pay money when Shrimati Kamla was brought to her father's house is altogether inexplicable. The father of Shrimati Kamla sent frantic letters to the respondent that the former's financial circumstances were such that he could nto bear expenses of the maintenance of Shrimati Kamla. The respondent would nto even acknowledge those letters and did so only after the registered letter had been sent to him. The respondent was getting a substantial amount as emolument and I fail to understand as to how he could escape his liability to meet the expenses for the maintenance of his wife.
(8) The learned Additional Sessions Judge was, in my opinion, in error in holding that sub-section (4) of Section 488 of the Code of Criminal Procedure was attracted in the case. Sub-section (4) reads as under
'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.'
In applying the above provision of law the learned Additional Sessions Judge took the view that the parties were living separately by mutual consent. The Court below, however, overlooked the aspect that Shrimati Kamla was of unsound mind and her pathetic condition was such as rendered her incapable of giving any consent. The words 'mutual consent' necessarily postulate that the desire to live apart should emanate from btoh parties and that none of them should be forced to separate living and ultimately submit to it only as a result of circumstances brought about by one of the parties. The test is whether the agreement to live separately was the outcome of the desire of btoh the parties, independently reached by each of them or whether one of them was forced to submit by circumstances or the attitude of the toher party to agree to separate living.
Here in this case Shrimati Kamla was nto capable, as mentioned earlier, of giving any consent. Besides that, her stay in her father's house and nto in her husband's house and become essential nto because she wanted to live in her father's house but because the respondent was nto prepared to keep her in his house on the ground that he had no toher person to look after her. It hardly needs to be emphasised that the problem posed in this case is essentially a human problem and being human we are prey to all kinds of ailments and infirmities. The courts cannto be oblivious of those traits but have to keep them in view; their approach has to be realistic and nto divorced from actualities.
(9) The respondent has admittedly nto paid anything to meet expenses for the maintenance of Shrimati Kamla ever since her discharge from the hospital, even though letters for this purpose were sent to him by her father. Shrimati Kamla has also no toher source of income. Although she has read up to B.A., and used to sign an on the radio, her ailment is such that she cannto support herself. In the circumstances, the respondent must be held to have neglected and refused to maintain his wife. The argument that If any amount is ordered to be paid for the maintenance of Shrimati Kamla it would be tantamount to burdening the respondent with liability to maintain her parents, is nto at all tenable. The Court has to award reasonable amount of maintenance for Shrimati Kamla only keeping in view of the financial status of the respondent the way of life to which she is accustomed and the present High cost of living.
(10) So far as the financial status of the respondent is concerned, he is, at present, admittedly drawing Rs. 1,165/- per mensum, being a Deputy Director in the Ministry of Works, Housing and Supply. As regards the mode of living, to which Shrimati Kamla is accustomed, I find that she has read up to B. A. Apart from the status of her husband two of her brtohers are Majors in the army, while the third brtoher is a Sub-Editor of the Times of India. Shrimati Kamla's sister is married to a Class 'I' Officer. There can also be hardly any dispute that the present cost of living is very High. The respondent was admittedly paying Rs. 200/- for the maintenance of Shrimati Kamla during her stay; in the hospital at Ranchi. In my opinion, he should now pay the same amount for maintenance of Shrimati Kamla.
(11) At the asking of the learned Counsel for the respondent Mr. Kishori Lal has given an assurance of behalf of Shrimati Kamla's father that the respondent can have access to Shrimati Kamla and that all facilities would be afforded to him to get Shrimati Kamla treated under Contributory Health Scheme at her father's house.
(12) I, thereforee, accept the revision, set aside the order of the courts below, and order the respondent to pay Rs. 2500 per mensum to Amar Nath Kapur for the maintenance of Shrimati Kamla .
(13) Petition allowed.