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Mammutty Vs. Beepathumma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1355
AppellantMammutty
RespondentBeepathumma
Excerpt:
- - mammutty who was unsuccessful before both the courts below has approached this court with this petition under section 482 of the criminal p. provided further that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing......circumstances. either before the order for maintenance was passed or after that, the husband can offer to maintain his wife if she agrees to live with him. when even at the stage of proceedings for recovery of maintenance not paid, if the husband is given an opportunity to offer to maintain his wife if she agrees to live with him. by no stretch of imagination it can be said that an offer made before the maintenance petition was ordered was a belated one. the scheme of the provisions is such that in maintenance cases no question of rejecting an offer as belated arises. but an offer made at .the eleventh hour may be said to be lacking in bona fides. it is clear from sub-sections (4) and (5) that maintenance can be denied or an order fox payment of maintenance can be cancelled if without.....
Judgment:
ORDER

K.K. Narendran Jain, J.

1. The short points that arise in this case are: (1) What can be a sufficient reason for a wife living in separation to refuse the company offered by her husband and to get an order for maintenance under Section 125 of the Criminal P.C, 1973 and (2) Whether an offer made by the husband to maintain his wife if she lives with him after the filing of the petition for maintenance, is a belated offer Mammutty, who was only short, of one for a hat-trick in divorce, marred Beepathumma. daughter of Assankutty. The matrimony was shortlived. After the first separation, they were united through mediation. But that was also soon followed by a separation,

2. Beepathumma approached the Chief Judicial Magistrate, Kozhikode, with a petition under Section 125 of the Criminal P.C. The husband Mammutty contested, He also offered to maintain Beepathumma if she was prepared to go and stay with him. The offer was rejected on the ground that she could not any more suffer the ill-treatment. The trial court allowed the petition and ordered maintenance at the rate of Rs. 60/- per month.

3. Mammutty challenged the order before the Sessions Court, Kozhikode in a criminal revision. The learned Sessions Judge confirmed the order of the trial court and dismissed the revision. Mammutty who was unsuccessful before both the courts below has approached this Court with this petition under Section 482 of the Criminal P.C.

4. The learned Counsel for the respondent contended that the courts below went wrong in awarding maintenance as this is a case where the husband has offered to maintain the wife if she resides with him and the wife has refused (o live with him without sufficient reason. According to the learned Counsel, in such a case Section 125(4) of the Code will be a bar for ordering maintenance. It was then contended that an offer by the husband to maintain the wife on condition that she lives with him can be made even pending the petition for maintenance. Hence it was pointed out that such an offer cannot be rejected as belated.

5. Section 125 of the Criminal P.C. 1973 reads:

125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain her- self or

(b) and (c) ...

(d) ...a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

(2) ...

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allonwance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided further that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing...(4) 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.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

6. Only when a husband neglects or refuses to maintain his wife she gets a right to claim maintenance. But even if the wife gets an order for maintenance, that does not mean that she will continue to get maintence for ever. The continuance of the payment of maintenance depends upon a number of circumstances. Either before the order for maintenance was passed or after that, the husband can offer to maintain his wife if she agrees to live with him. When even at the stage of proceedings for recovery of maintenance not paid, if the husband is given an opportunity to offer to maintain his wife if she agrees to live with him. by no stretch of imagination it can be said that an offer made before the maintenance petition was ordered was a belated one. The scheme of the provisions is such that in maintenance cases no question of rejecting an offer as belated arises. But an offer made at .the eleventh hour may be said to be lacking in bona fides. It is clear from Sub-sections (4) and (5) that maintenance can be denied or an order fox payment of maintenance can be cancelled if without sufficient reason the wife refuses to live with her husband. As to what will constitute sufficient reason will depend upon the facts and circumstances of each quest. In this case, the evidence is that the husband was in the habit of beating the wife and ill-treating her under the influence of alcohol. After living for some time in separation, on an earlier occasion she was persuaded to go and live with him. But later she had to leave the husband's house as she could not suffer the ill-treatment. Though a further attempt was made by the relatives she was not prepared to make another trial. She might have been also influenced by the fact that the earlier two marriages of the husband ended in divorce. In the above facts and circumstances, it cannot be said that this is a case where the wife refuses to live with the husband without sufficient reason. Only in cases where there is not sufficient reason, for the wife to refuse to live with the husband she can be denied maintenance. The order impugned does not call for any interference by this Court under Section 482 of the Code. The petition is dismissed.


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