1. The petitioner as orphan, lives with her widowed mother, a refugee. Married to one Mohammad Shafi, the non---applicant, a hotelier, manipulated her divorce. A grandpa: his second son was a student of B. A. Two years back. It appears from evidence, that the senior wife who was lucky enough to command the support of grown up children, made it impossible for the petitioner, as could be expected, to live under the same roof resulting in the latter's returning back to her mother.
2. Some time later she sued for divorce and after the non-applicant received notice of the suit, he countered by suing for restitution of conjugal rights. He succeeded and on 7-3-1966 while the divorce suit was dismissed, his suit was decreed. However, the girl continued to live with her mother and on 10-6-1969 filed an application for maintenance. The Magistrate having dismissed it, she has come in revision to this Court.
3. I have carefully gone through the record and given my earnest consideration to the arguments addressed by the learned counsel for the parties.
4. It is admitted by Alam Din D. W. The non-applicant's cousin that she had been living with her mother four d ears prior to the passing of the decree. Thus when she brought the application, she had been living away for about 7 years. Obviously, it is too long a period for any wife to live away from her husband and especially for a girl who has no father to support her and whose mother is- herself leading the miserable life of a widow.
5. It is abundantly proved from the statements of her witnesses that her mother had been making constant endeavours for a compromise. Sardar Ali Akbar Lambardar says that his efforts two years back to bring about a compromise couldn't materialise due to the non-cooperation of the non- applicant. He stated further that a month back he sent for the non---applicant on the shop of Sardar Muzaffar Khan and told him that tic should either take back the petitioner or divorce her to which he replied that he was prepared for neither; the witness then proposed that two arbitrators be appointed by each party who should after taking a special oath decide the matter but the non- applicant was not agreeable. Ghulam Haider Khan has said that the petitioner's mother hay' been convening Jirgas to bring about a compromise. He has also said that the non-applicant has children from the other wife "and under these circumstances she cannot live with him unless she has a separate house." The third witness Mir Hussain Khan Chowkidar says that a panchayat attended by himself, Ali Akbar Khan, Haq Nawaz Khan, Mohammad Hanif, B. D. Member and Abdul Aziz Lambardar decided that the non-applicant shall pay Ids. 300 as past maintenance and that his son and first wife shall take the petitioner to their house but that he did not implement it.
6. These witnesses being independent are reliable. There is not even a suggestion. In cross- examination of any enmity with tire husband or interest in the woman. The evidence produced by the non-applicant is that he had been vainly trying tea take her back. This evidence does not inspire confidence. Alam lain is a cousin; Nazar Hussain is his real brother; the witnesses are not agreed as to who accompanied whom, who among the male was present there and as to the substance of the talk; again, the name of not one of them was suggested in cross-examination or put to the petitioner.
7. The first question for determination is whether there has been neglect or refusal on the part of the husband to maintain the petitioner? Section 488 provides: "If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself . . . . . ."
8. Clearly, the husband is liable either if neglect to maintain can be proved or if there has been a refusal to maintain. These are two distinct situations which may not necessarily be inclusive.
9. Probably by using the word neglect the Legislature specifically intended to provide for default by conduct. What is meant by the word neglect? Its equivalent latin word is "neglectus" which is the past part of the word "Neglegere" or "Neglegere" composed of the words Neg meaning Not and Legere meaning to pick up, gaoler. Thus the word means not to pick up, not to gather. Webster has defined it as: "to disregard or slight; to omit to notice; to treat with little or no attention or respect; to consider or deal with as though of no consequence etc. Etc." In some sense the word neglect is passive in the sense the word refusal is aggressive, One represents the mere breach of obligation while the other may mean an express repudiation of such obligation. In the practical sense, the distinction is quite thin except that the word neglect is perhaps snore in keeping with the self- respect and dignity of the wife because unlike the words "refusal to maintain" it does not necessarily presuppose a demand for maintenance. It is the husband's duty to maintain his wife and breach of this duty would mean neglect to maintain, as laid down in PLD 1967 Azad J & K 32.
10. Marriage doesn't amount to the signing of a death warrant for the individuality or self-respect of a woman. Gone are the days when she was treated as a chattel whose possession determined her ownership.
11. She is normally more sensitive than man and the surest way to wreck a marriage is to treat her like a heartless object. It is not a pact of the marriage-contract that she must necessarily bear all indignities for the pleasure of her husband. Therefore if the roof of the husband under which she lives also roofs a co-wife and her children who snake life miserable for her, she is not bound to bear, those sufferings as a necessary ingredient of marriage and may well demand a separate residence and maintenance.
12. It is not the requirement of section 488 that the woman must prove that she had been physically pushed out of his roof by her husband or Cam she had made efforts to invoke his mercy for being taken under his roof. It was held in AIR 1940 Pat 212 that causing a wife to leave home due to ill- treatment, was tantamount to deliberately driving her from home, if she is willing to return to his roof, she has nothing to prove but only make an application for maintenance. In such a case if the husband has some objection to taking her under his roof or paying her maintenance it is for him to show cause. It is only if she is not prepared to take up residence with him if it is offered or under the same roof where he presently resides, that she ha; to satisfy tae Court about the justification of a departure from the normal course. No hard and fast rule can be laid down as to what would constitute such justification. It has to be decided is the light of the facts of each case.
13. Incidentally, it has been said that the purpose of enacting section 438 was to prevent vagrancy among woman. That is the peculiar way man approaches his own defaults. Poor creature! Even when she is deserted by the husband, the intention of section 488 is not to get her justice or to compel the husband to discharge his duties but only to protect the vested interests of roan by seeking to prevent her froze becoming vagrant! Self-righteous man! He seeks to defame her even if he has himself to blame.
14. The petitioner can be believed that relations between her and the co-wife were far from happy. It is possible that the non-applicant was torn between the youthful petitioner anti the fear of his first wife, supported as she luckily was by grown up children. It was therefore natural that through growing ill-will and constant quarrels the petitioner was compelled to return to her mother. Thus it cannot be said that the wife had left the roof of the husband voluntarily or without reasonable cause. Callous indifference by the husband for so many years, the frequent efforts made by her mother to hold Jirgas for a compromise, the intervention of Elders and failure of these efforts by men of goodwill due to the obstinacy of the non---applicant and the failure on the part of the husband to resume even a dialogue with the woman who after all looked towards him for protection aced security clearly prove neglect within the meaning of section 488, Cr. P. C.
15. When the non-applicant was arraigned before the Court, he offered to maintain her in the house- where his first wife resides; but before the effect of the offer is taken up, the question arises as to whether the offer to maintain can be made at this stage. A glance at the section would show that the Legislature has expressly provided for such an offer. But placed it as a proviso to subsection (3) which deals with the enforcement of the order of maintenance already passed under subsection (1). This has resulted in some conflict. In AIR 1943 Lah. 59 it was held that although the Legislature has used the word "section" in proviso (1) following section 488(3), that proviso governs section 488 (1). It was further held that such a view was strengthened by the fact that proviso (2) which follows the first relates definitely to section 488 (3) alone, Justice Blacker who has one of the learned Judges in this D. B. Case expressed the same view in AIR 1943 Lah.
123. It would perhaps mean that the offer by husband to maintain his wife was not available to him as a defence against the application.
16. The same argument was raised in PLD 1967 Pesh.
17. It appears that the above rulings were not brought to the notice of the learned Judge. However, agreeing that the proviso in question did not cover subsection (1), his Lordship's view was that it would have been superfluous to do so as it was inherent in subsection (1) itself it was held:- "This being true scope of the enquiry under subsection (1), the offer of the husband and the refusal of the wife to live with her husband are not only important factors for deciding the issue of neglect or refusal, but deciding factors which would tilt the balance one way or the other. In absence of any neglect or refusal, the wife cannot refuse to live with her husband and permit him to discharge marital obligations."
17. With very great respect to the learned Judges who took the contrary view I think the proviso is applicable to subsection (1) also for the following reasons-
(1) It does not look convincing that while a husband can be excused from the payment of maintenance already decreed by making a bona fide offer to take back his wife even at such a late stage but not so in the initial stages when the parties have not as yet gone into evidence and spent time and energy in proving their respective cases:
(2) Morality and public policy require the wife and husband to live together and this purpose would be defeated if the husband was not legally in a position to make such an offer immediately; to allow the parties, instead, to bring accusations and counter-accusations which nay widen the gulf between them and harden their attitudes, could not be the intention of law-makers.
(3) The Legislature having used the word "section" instead of "subsection" in the said proviso can be presumed to have done so deliberately so as to widen its application to the entire section.
(4) Why the proviso has been placed after subsection (3) is because the Legislature wanted to extend it even up to the stage of realisation. Its insertion after subsection (1) would have necessitated its repetition after subsection (3) and repetition is one thing that the law-maker is at pains to escape from.
18. Now coming to the offer itself, it seems that merely because the husband makes an offer to take back his wife neither absolves him of his responsibility to pay for her maintenance nor does it relieve the Court of its duty to investigate the genuineness or otherwise of the offer. In this country the attitude of the great majority of men towards their wives is one of master and slave. They are not even aware of the protection available or the rights conferred by law; so it frequently happens that women are notable to convey their woes perfectly or adequately; proper or painstaking legal assistance is not always available to her; she should not therefore be made to suffer for failure of proper communication; as such, whenever a wife refuses the offer, there may be some good reason for it and it becomes the duty of the Court to examine her carefully and investigate the causes. Should a wife accept the offer, the proceedings would come to an end and there can be no happier end of such proceedings than a union of the wife with her husband but if the woman declines the offer, it becomes the duty of the Court carefully to examine the grounds of such refusal and if it concludes that the offer was illusory or advanced to frustrate the wife's efforts to seek justice or that the wife has some other justification to reject it, the offer made by the husband under such circumstances may justly be treated as not being bona fide. It is the duty of the Court to satisfy itself that the offer is bona fide and has been made not just to defeat the wife by a stratagem but in sincere furtherance of conjugal love. Reference may be made to A T R 1920 Lah.
19. 201, AIR 1935 All. 977 and AIR 1939 Lah. 533.
20. The next question to be considered is as to whether the petitioner has made out a case for refusal to accept the offer? In this connection the proved facts such as the other wife and her grown up children living under the same roof, total in attention to which she has been subjected for nine years, E failure of initiative on his part to take her back and refusal to cooperate with Elders or abide by their decisions show that the offer by the husband is not bona fide and the wife's refusal to accept it has considerable force. In this connection cane may refer to a few rulings on the point. In AIR 1940 Mad. 292 it was held that reasonable apprehension of physical ill-treatment was a sufficient and just cause for wife's refusal to live with the husband. In AIR 1938 Rang. 25 the spouse was separated and a suit for judicial separation by wife failed; she then filed an application under section 488; neighbours tried for a compromise but due to the stubborn attitude of the husband, the efforts failed. It was held that the offer of maintenance was not bona fide and the wife was entitled to maintenance. In AIR 1914 Lah. 185 it was held that where it was impossible for the wife to return to the house of the husband after many yeas separation without leading to fresh trouble, she was entitled to maintenance while living apart. The same view was taken in AIR 1931 Lah. 561. In AIR 1940 Pat. 242 it was held that if the wife was ill-treated and there was ground for believing that if she returned back, she would be ill-treated again, it was no defence for the husband to say that he will take her back.
21. The non-applicant at the fag end of the proceedings stated that he was prepared to keep her in a separate house and even went to the extent of saying that he was prepared to pay maintenance even in the house of her mother. It seems that by then he had become conscious of the total neglect to which he had subjected her and also of the impossibility of taking her back under the same roof where his first wife and her children were residing. It may be pointed out that not only was no such offer ever made during the 7 years before the application was brought and during which period the petitioner must have been agonisingly brooding over her future in the house of her poor widowed mother but also no such offer was trade in the written statement filed by him in answer to the petitioner's application; that this offer came in course of cross-examination also shows how skin-deep it is. The past conduct of the non-applicant also shows its superficial nature; that past conduct of the husband was material and ought to be taken into consideration to determine the bona fides of the husband's offer is Lorne by authorities. One may only quote AIR 1917 Lah. 213.
22. The next question to be determined is the effect of the decree of conjugal rights passed in favour of the non-applicant. It was claimed by his learned counsel that the decree operated as a bar to the grant of maintenance. No law or authority was cited in support of the proposition. On the contrary it may be pointed out that maintenance is not being demanded for the period prior to the passing of the decree, a fact which makes all the difference in the present case. The husband could execute the decree and if the wife had any property, he could get it attached and sold. He has not brought any application for execution. This decree however does not prevent the wife from bringing a claim for maintenance for a period after the passage of the decree and if she can prove that the blame for continued separation cannot be thrust upon her shoulders, she is entitled to get maintenance. I have already cited AIR 1938 Rang. 25 in another context. In this case the suit for judicial separation had failed and yet the Court passed an order for maintenance for a period prior to the passing of the decree. The next case is AIR 1924 All. 784. In this case a decree for conjugal rights had been passed, 13 months later an application under section 488 was filed and granted. The third case is AIR 1960 Madh. Pra. 245 wherein it was held that the fact that there was a decree for restitution of conjugal rights against the wife before proceedings under section 488 were started, was immaterial. It was further held that it was open to the husband to execute the decree. Such decrees cannot be allowed to be used as a peg by husbands for neglecting their duties towards their wives or trampling down their rights, at will, If the Court is satisfied that after its passage, the wife was willing to perform her duties but that it was because of the husband's attitude that it was not possible for her to do so, as is proved in the instant case, the decree for restitution of conjugal rights cannot frustrate her right to maintenance.
23. The primary objective before a woman is to seek security. Being economically dependant and socially weaker of the two, it is only in the fitness of things that the initiative to take her back or to bring about an understanding should come from the husband. He ought to show large- heartedness and a greater decree of accommodation in matrimonial disputes. It would not diminish his "importance" or compromise his self-respect.
24. In passing I would like to add that section 488 had been enacted to give relief to women and children deserted by their husbands or fathers who are under law bound to maintain them. It must receive, therefore, as far as possible a liberal construction so as to advance the remedy. It is my experience at the bar that an order for maintenance almost invariably results in a compromise because the prospect of regular payment to the wife or the child, itself operates as a healthy influence on the husband and he begins to see the light of reason and morality.
25. I, therefore, accept the application and setting aside the order of the learned Magistrate grant her maintenance at the rate of Rs. 40 per month from the date of the application namely 10-6-1969.
26. After making this payment to her, if the non-applicant is really serious about providing her with a separate residence, he is entitled to repeat this offer to her after making arrangements for the separate residence and the learned Magistrate will examine the petitioner about such an offer and decide the future course of action in accordance with law.