Full Judgment
Ramabhadran, J.C.
1. This is a reference by the learned Sessions Judge of Chamba, wherein he has recomanended that an order under Section 488, Cr. P. C., an favour of Mt. Chanchoo be set aside.
2. Mt. Chanchoo asked for maintenance on the ground that her husband, Madho (whom she had married about 14 years previously), had taken to drink and contracted illicit intimacy with one Mt. Naro and finally beat her and turned her out on 4th Bhado, 2009.
3. These allegations were denied by Madho. His case was that Mt. Chanchoo left his house during his absence and went back to her father's house and refused to return despite his efforts to get her back. The learned Magistrate, who tried the case, found in favour of Mt. Chanchoo and directed Madho to pay her Rs. 15/- p.m. as maintenance. Madho went up in revision to the learned Sessions Judge, who was of the opinion that the Magistrate's order could not be supported.
He has pointed out and quite rightly that, unless it is proved that the husband has refused or neglected to maintain his wife, the Magistrate has no jurisdiction to award maintenance under Section 488, Cr. P. C. The learned Judge has pointed out that Madho took a Panchayat to his father-in-law's house in an attempt to bring back Mt. Chanchoo, but she refused to go back to him.
4. I have heard learned counsel for the parties as well as the learned Government Advocate. They have taken me through the evidence on the record. It does appear therefrom that Madho has developed illicit intimacy with one Mt. Tulsi and has taken to drink, but, all the same, these would not be just grounds for Mt. Chanchoo's refusal to live with him. Mt. Tulsi, it must be mentioned, does not live in Madho's house. It is Madho who goes to her house. In--'Balak Ram v. Mt. Padi, AIR 1952 Him.-Pra. 55 (A), my learned predecessor pointed out:
'The basis for proceedings under Section 488 at the instance of the wife is that the husband though having sufficient means neglects or refuses to maintain her. The wife would not be entitled to institute the proceedings if that basis did not exist at the time of her filing her application.'
Learned counsel for Mt. Chanchoo argued that in his written statement, Madho had brought a false charge of unchastity against his wife and, therefore, she was entitled to live apart from him. Reliance was placed, inter alia, on--'Kamala Gangalamma v. Venkataramia Reddi', AIR 1950 Mad 385 (B), where the decision was:
'Deliberate attribution of immorality falsely to a wife will certainly fall under the definition of legal cruelty and entitle a wife to live separately from such a husband and claim separate maintenance'.
As the learned Government Advocate rightly pointed out, this was not one of the grounds on which Mt. Chanchoo sought maintenance. We are concerned with the allegations made in the application under Section 488. I agree with the view of the learned Sessions Judge that, as the record stands, Mt. Chanchoo failed to prove her case.
The result is, I accept the reference made by the learned Sessions Judge and set aside the order made by the Magistrate, first class, Chamba, (Shri Hari Ram Thakur) dated 14-9-1953. I may make it clear that it would be open to Mt. Chanchoo to institute a fresh application under Section 488 later on, if so advised, and if the conditions, necessary to justify filing of such application, are fulfilled.