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Yenamala Narayana and anr. Vs. Yenamala Kondaiah and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1976CriLJ1240
AppellantYenamala Narayana and anr.
RespondentYenamala Kondaiah and anr.
Excerpt:
.....actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - it is well-settled that a deliberate false imputation of unchastity to a wife by the husband is legal cruelty and such legal cruelty is sufficient reason for the wife to live separately and claim maintenance to which she would be entitled on proof of refusal or neglect by the husband to maintain. the question of cruelty under that section must be determined with due regard to the culture, temperaments, status in life, customs and..........entitled to live separately from the respondent in so far as the respondent has been guilty of legal cruelty by falsely attributing unchastity to the first petitioner, the judicial first class magistrate, kandukur awarded maintenance of rs. 40/- to the first petitioner and rs. 20/- to the second petitioner on the ground that the respondent has neglected and refused to maintain the petitioners. on a revision filed by the respondent against the order granting maintenance, the learned sessions judge set aside the order of maintenance holding that 'the first respondent (the first petition herein) has been guilty of more legal cruelty to the petitioner (the respondent herein) rather than the petitioner to her in as much as the case of the first respondent that her husband married a second.....
Judgment:
ORDER

Madhusudan Rao, J.

1. The two petitioners herein are the wife and minor daughter respectively of the respondent. Holding that the petitioners were entitled to live separately from the respondent in so far as the respondent has been guilty of legal cruelty by falsely attributing unchastity to the first petitioner, the Judicial First Class Magistrate, Kandukur awarded maintenance of Rs. 40/- to the First petitioner and Rs. 20/- to the second petitioner on the ground that the respondent has neglected and refused to maintain the petitioners. On a revision filed by the respondent against the order granting maintenance, the learned Sessions Judge set aside the order of maintenance holding that 'the first respondent (the first petition herein) has been guilty of more legal cruelty to the petitioner (the respondent herein) rather than the petitioner to her in as much as the case of the first respondent that her husband married a second time is proved to be false by her own evidence. In the circumstances the attribution of immorality to the first respondent by the petitioner in his counter and registered notice cannot be taken as amounting to legal cruelty.

2. Sri M. Ramaiah, the learned Counsel for the petitioners contends that the view of the learned Sessions Judge is wholly erroneous and that the order of maintenance passed by the learned Magistrate ought not to have been set aside Smt. J. Chamanthi, the learned Counsel for the respondent contends that in so far as the first petitioner has falsely alleged that the respondent married a second wife, she is guilty of legal cruelty towards the husband by attributing immorality to the husband and is therefore not entitled to any maintenance. The short question for consideration in this revision therefore is whether a wife forfeits her right to maintenance under Section 125 Cr. P.C. (new) if she falsely alleges that her husband married a second wife.

3. Section 125(1) Cr. P.C. provides that if any person having sufficient means, neglects or refuses to maintain his wife, unable to maintain herself or his child legitimate or illegitimate, unable to maintain itself, or his father or mother, unalbe to maintain himself or herself, a Magistrate may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or child, father or mother. There is no dispute of the first petitioner being the legally wedded wife of the respondent. There is also no doubt whatever that the respondent attributed unchastity to the wife in the registered notice issued by him prior to the institution of the petition for maintenance and subsequently also in the counter filed by him in the court. The Magistrate who held the enquiry came to a conclusion that the allegation of unchastity against the first petitioner is false. The learned Sessions Judge did not rightly disagree and on the other hand accepted the conclusion of fact as correct. It is well-settled that a deliberate false imputation of unchastity to a wife by the husband is legal cruelty and such legal cruelty is sufficient reason for the wife to live separately and claim maintenance to which she would be entitled on proof of refusal or neglect by the Husband to maintain. Once, a wife is erititled to maintenance under Section 125(1) the only provision under which a husband can resist the claim is under Sub-section (4) of Section 125. It reads as follows:

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 were living separately by mutual consent.

4. The order of the learned Sessions Judge setting aside the order of maintenance granted in favour of the petitioners is not based on any of the grounds contemplated under Sub-section (4) viz., (1) the wife living in adultery; (2) her refusing to live with the husband without sufficient reason, and (3) the wife and husband living separately by mutual consent. The order is based on the ground that the wife is guilty of legal cruelty by attributing immorality to the husband by falsely alleging that the husband married a second wife. It does not appear from an examination of the provisions in the Code in regard to the grant of maintenance to wives that any other conduct of the wife else than the conduct specified in Sub-section (4) would disentitle the wife for maintenance. The object of Section 125 is to provide though limited but speedy relief for neglected wives children and parents, who are unable to maintain themselves and to prevent them from resorting to undesirable and unhealthy methods for their food, clothing and shelter. By virtue of Explanation (b) to Sub-section (1), even a divorced wife, if she has not remarried and is unable to maintain herself, is entitled to maintenance. Even occasional lapses from morality by the wife are considered insufficient to disentitle her for maintenance. It is only when the wife lives in adultery and has thus a protector or when she lives separately by mutual consent 01 when she deliberately refuses to live with the husband without any sufficient reason that a husband is absolved of his liability to maintain the wife. The parties in two cases are Hindus. Even Sub-section (3) of Section 18 of the Hindu Adoptions and Maintenance Act 1956 does not provide for the forfeiture of the wife's right to maintenance on account of her legal cruelty towards the husband. That subsection reads:

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

5. While factual or legal cruelty by itself is no ground for dissolution of the marriage under Section 13 of the Hindu Marriage Act 1955. Section 10 of that Act provides that either party to a marriage, whether wife or husband, may seek a decree for judicial separation on the ground that the other party is guilty of such cruelty as to cause a reasonable apprehension in the mind of the petitioning party that it will be harmful or injurious for him or for her to live with the other party. The question of cruelty under that section must be determined with due regard to the culture, temperaments, status in life, customs and manners of the parties, their daily habits and such other factors so as to arrive at a conclusion that the complained behaviour is such as might cause such pain and injury to the mind so as to render the continuance of a matrimonial home between the two spouses an agonising ordeal. Whether a false accusation by a wife that her husband married a second wife amounts to legal cruelty or not under Section 10 of the Hindu Marriage Act, does not require to be decided in this revision. Even accepting the view of the learned Sessions Judge that such false accusation by the wife amounts to legal cruelty, it may constitute a ground for judicial separation, but by itself it cannot be allowed to operate as a ground of exemption from the husband's liability to maintain his wife.

6. For the reasons recorded, the order passed by the learned Sessions Judge in Crl. R. C. No. 11 of 1974 is set aside and the order of the learned Judicial First Class Magistrate in M. C. No. 32 of 1973 is restored.


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