Skip to content


A.S.N. Nair Vs. Sulochana - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1898
AppellantA.S.N. Nair
RespondentSulochana
Cases ReferredSyed Ahmad v. N. F. Tai Begum
Excerpt:
- - such obligations include marital consortium as well as the responsibility of the husband to maintain the wife. 9. learned counsel for the revision petitioner placed strong reliance on the decision in george v. the intention on her part to live away from the husband once for all, is clearly seen reflected in the above quoted statement in ext. such arrogance should be condemned as it is against public policy and out of tune with modern tendencies of social life, however, strong 'the fling of sentimentalism or the glow of chivalry be,'in support of it. the case is also clearly distinguishable on facts. on a consideration of clause (4) and the first proviso to sub-section (3) of section 488 of the code of 1898 (for short 'the old code') came to the conclusion that the first proviso to.....u.l. bhat, j.1. the revision petitioner was directed by the chief judicial magistrate. trichur in it c. no. 18 of 1978 lied under section 125 of the code of criminal procedure for short the code) to pay monthly maintenance of rs. 80/-per month to his wife, the respondent herein. this order is challenged now. the revision petition came up for consideration before one of us (bhat, j.) and the matter was referred to a division bench as there appeared to be an apparent conflict between the decisions of two learned single judges of this court on one of the points involved in this case.2. the revision petitioner (c. p. w. 1) married the respondent herein (p. w. 1) on 13-6-1971 in accordance with the customs of their community. two children were born in the wed-lock. m. c. 11 of 1976 filed by.....
Judgment:

U.L. Bhat, J.

1. The revision petitioner was directed by the Chief Judicial Magistrate. Trichur in It C. No. 18 of 1978 lied under Section 125 of the Code of Criminal Procedure for short the Code) to pay monthly maintenance of Rs. 80/-per month to his wife, the respondent herein. This order is challenged now. The revision petition came up for consideration before one of us (Bhat, J.) and the matter was referred to a Division Bench as there appeared to be an apparent conflict between the decisions of two learned single Judges of this Court on one of the points involved in this case.

2. The revision petitioner (C. P. W. 1) married the respondent herein (P. W. 1) On 13-6-1971 in accordance with the customs of their community. Two children were born in the wed-lock. M. C. 11 of 1976 filed by the wife before the Chief Judicial Magistrate, Trichur claiming maintenance from C. P. W. l under Section 125 of the Code, was allowed. In Cri. R. P. No. 55 of 1976 before the Sessions Judge, Trichur an offer made by the husband was considered and he was directed to reserve tickets within a period fixed by the court for the wife and children to go to Bangalore where he is employed. The reservation was not made and the Cri. R. P. No. 55 of 176 was dismissed. C. p. W. 1 filed Cri. M. P. No. 639 of 1977 before this Court under Section 482 of the Code. The petition was disposed of, allowing C. P. W. 1 to take his wife and children with him to Bangalore within a particular time. He took them to Bangalore and they lived together.

3. P. W. I alleges that after some the he brought her to Trichur and by fraud, coercion and intimidation obtained her signatures on some documents without her consent and he left her and the children at her father's house and later came to know that one of the papers so signed (Ext. D2) is a divorce agreement. Immediately she filed M. C. 18 of 1978 for maintenance. C. P. W- 1 resisted the claim on the ground that by virtue of Ex. D2, by mutual consent the marriage has been dissolved and they are living separately and therefore she is not entitled to maintenance from him. At the stage of evidence he offered to maintain her in case she lives with him. Learned Magistrate on a consideration of the entire evidence held that Ext. D2 does not make out a valid divorce and the marriage is stil] subsisting, that there was no agreement between the parties to live secarately. that the offer made by C. p. W. 1 is not bona fide, that she has no means of her own and he has means to maintain her and accordingly ordered him to pay maintenance at the rate of Rs. 80/- per month for her.

4. learned Counsel for the revision petitioner urged three contentions before us. First, that from Ext. D-l and Ext. D-2 it can be inferred that the parties are living separately by mutual consent and therefore under Section 125(4) of the Code she is not entitled to separate maintenance; second, that though it is for the husband to show that she refuses to reside with him, burden is on the wife to show that there are sufficient reasons for her refusal and the burden has not been discharged by her and the lower court has taken a wrong view on burden of proof; and third, that the offer made by him must be accepted as genuine and bona fide.

5. The contention regarding living separately by mutual consent is based primarily on Exts. D-l and D-2. Ext. D-l bears P. W. l's signature on revenue stamp and is dated 11-12-1977.- In ext. D-l P. W. 1 purports to state that monthly maintenance must be paid to the two children at the rate of Rs. 90/-till they attain the age of 18 years, that if the jewellery mentioned therein is returned and the maintenance amount due to the children is paid, she is prepared to have a divorce from her husband. Ext. D-2 is a registered marriage dissolution agreement signed by both parties on 12-12-1977. It recites that there were misunderstandings for some time, that they feel that if the. marital tie is to continue it may lead to unfortunate consequences and therefore as per the document their marital tie is severed. It also recites that thereafter they will not have any mutual rights or obligations, financial or physical, that it is agreed that the children are to live with the wife and each of them is at liberty to marry again, that the financial and other accounts arising out of their marital tie have been settled, and in future neither has the right to ask or to demand accounts. There is a recital that the liability for maintaining the children has been separately settled.

6. In the M. C. petition, the wife alleges that the documents were brought about by coercion and intimidation. The petition proceeds on the basis that the marital tie still continues. In the written statement filed by the husband, he supported Exts. D-1 and D-2 as from any taint. This dispute remains to be decided in a suit filed by her and now pending

7. It is significant to note that there is no specific contention raised in the counter that because they are living separately by mutual consent she is not entitled to claim maintenance. The tenor of the counter is that the marital tie has ended by Ext. D-2 agreement, and under the agreement she has given up her claims and therefore she is not entitled to maintenance. In the counter he did not take the stand that Ext. D-2 will not operate as a valid divorce. The learned Magistrate found that Ext. D-2, even if valid and genuine and free from the defects alleged by P. W. 1. will not operate as valid divorce. For the purpose of these proceedings, learned Counsel for the revision petitioner submitted that he does not challenge this finding since divorce by a registered agreement is not recognised under the Hindu Marriage Act. The contents and tenor of the counter show that he did not intend to put forward a defence that P- W. 1 is ineligible to claim maintenance because they as spouses are living separately by mutual consent.

8. Sub-section (4) of Section 125 of the Code contemplates three contingencies under which the wife shall not be entitled to maintenance from her husband under Sub-section (1)- One of the contingencies mentioned is where 'they are living separately by mutual consent.' 'they' refer to wife and husband mentioned earlier in Sub-section (4) When two persons are referred to as wife and husband, it must necessarily follow that they are being referred to as parties to a subsisting marriage. To attract Sub-section (1), they must live separately by mutual consent while the marital tie is subsisting. Such mutual consent must be the outcome of the desire of both spouses, qua spouses, to reside separately. Normally a husband is liable to maintain his wife, whether she resides with1 him or elsewhere. if her residence elsewhere is on account of her refusal to live with him and discharge her marital obligations, his obligation to maintain her ceases. But if her refusal to live with him is justisiable, his liability to maintain her will not cease.

If it is the husband who leaves his wife and neglects her. then also his liability to maintain her in the term of payment of separate maintenance will subsist. Under Sub-section (4) of Section 125, a different consequence arises where the spouses live separately by mutual consent. In such a case they agree, by implication, that they will, at any rate, for the present, cease to have any right to insist on the discharge of marital obligations towards each other. Such obligations include marital consortium as well as the responsibility of the husband to maintain the wife. This is the reason for the provision in subsection (4) that where the spouses decide to live separately by mutual consent, the husband is not liable to pay maintenance allowance to the wife. It must also be mentioned that where the wife revokes or withdraws her consent for such separate residence, her right to claim maintenance revives and her in-eligibility to claim maintenance ceases. In this view it is clear that in order to attract Sub-section (4), their separate residence and the basis of their separate residence, viz., mutual consent, muse have been on the supposition and with the consciousness that they continue to be spouses and but for the mutual consent they are bound by mutual rights and obligations.

Where they are lawfully divorced, Sub-section (4) will not come into operation at all, since a divorced wife does not reside separately by mutual consent but resides so, as a consequence of her status as a divorcee. Where the parties, under the supposition that they are no longer husband and wife as they have put an end to their marital tie, reside separately or consent to reside separately, such residence or consent cannot be in derogation of their mutual ' lights and oblgations as spouses- In such a case their willingness to reside separately is only a reflection or consequence of then belief that they are no longer husband and wife. If the divorce is shown to be not valid in law, their willingness or consent to reside separately on the basis of a de facto divorce, cannot be treated as mutual consent for separate residence as spouses. Parties in this case believed that they have put an end to the marital tie under Ext. D2. The agreement Ext. D2 evidences such a belief. Their separate residence subsequent to Ext. D2. cannot be treated as a 'separate residence by mutual consent' with the consciousness that they still continue to be spouses Consciousness of a sub- sisting marriage is the essential basis for the ineligibility contemplated under the particular part of Sub-section (4) of Section 125. Since such consciousness is lacking in this case, P. W. 1 does not become ineligible by virtue of Sub-section (4) of Section 125 of the Code.

9. learned Counsel for the revision petitioner placed strong reliance on the decision in George v. Podiyamma 1968 Ker LT 176. In that case, the spouses entered into a registered receipt in which the wife stated that she has received certain amounts as dowry amount etc., due to her since she had no desire to continue the marital tie in future, as agreed to by both of them. They lived separately thereafter. As per the receipt, the suit filed by the wife for returning the dowry amount, certain ornaments alleged to have been taken by the husband and for maintenance was compromised, in this context, Sadashivan J- observed as follows:

The intention on her part to live away from the husband once for all, is clearly seen reflected in the above quoted statement in Ext. D 2. A wife who agrees to live separately, forfeits her claim for maintenance for ever and she cannot subsequently come forward and claim it on the ground that the marriage subsists for all legal purposes....

It was urged that in the absence of a formal divorce it can be presumed that the marital tie continues and the husband's obligation to maintain the wife continues. Dealing with this argument, Sadasivan J- observed as follows:

The husband is always entitled to the consortium of his wife....Consortium normally implies cohabitation of the spouses and when this right is denied to him he has no obligation to maintain her. Right to maintain springs from the husband's enjoyment of the society and services of his wife and not merely from an empty or ornamental status as wife conferred by law. A wife living away cannot be made to dictate to the husband that he should maintain her since she is legally the wife; such arrogance should be condemned as it is against public policy and out of tune with modern tendencies of social life, however, strong 'the fling of sentimentalism or the glow of chivalry be,' in support of it.

Accordingly the order for maintenance passed by the Magistrate was set aside.

10. A consideration of the above extracts will show that the decision really rested on the ground that the wife was living apart and had no just ground or sufficient reason to live apart and deny consortium to the husband. The case is also clearly distinguishable on facts. In the present case, Ext. D 2 is clear evidence to show that the parties purported to sever the marital tie and consequently believed that they are no longer spouses. In such a case, the 'mutual consent to live apart', if any, was arrived at not in derogation of marital refits and duties in which case alone Sub-section (4) of Section 125 of the Code will be attracted, but by virtue of their belief that they were no longer husband and wife and therefore had to live apart. In George's case, the document did not even purport to effect a divorce or put an end to the marital tie. Therefore, in that case, the parties could not have been under the belief that they were no longer husband and wife. The mutual consent to live apart in that case was arrived at only in the light of future prospect of a divorce and not under an existing belief that the marital tie was already ended as in the present case. The parties in George's case did not have the consciousness that they were no longer husband and wife.

The mutual consent in that case wa in spite of their consciousness that the marital tie subsists. In such a contingency, Sub-section (4) of Section 488 of the Code of 1898 (which is identical to the corresponding provision in the present Code) would be attracted. Moreover, as already stated by us. that decision proceeded On the basis that a wife who refuses to live with the husband and deny him consortium without any sufficient reason is not entitled to maintenance. In that view there could not be said to be any refusal Or neglect on the part of the husband as contemplated in Sub-section (1) of Section 125 in George's case. We hold that the ratio of that decision cannot be applied to the facts of the present case. Ext. D 2 also does not spell Out a decision to reside separately by mutual consent. We hold that the clause 'live separately by mutual consent' cannot apply to the facts of the present case.

11. Now we turn to the argument based on the offer made by the husband. C. P. W. 1 did not, in his counter, make an offer to maintain P- W- 1 if she goes arid lives with him. The counter does not spell out a case that she refuses to go and live with him and therefore he is not liable to maintain her. P. W. 1 was asked in cross-examination whether she is prepared to go and live with him and she answered in the affirmative. In re-examination she stated that she does not go back to her husband because she is afraid to do so. After having obtained such an answer, C. P. W. l during his evidence made an offer. The learned Magistrate held that the offer was not genuine or bona fide. The learned Counsel for the revision petitioner contended that this finding is erroneous and is not based on a consideration of the facts and circumstances of the case and that, under Sub-section (4) of Section 125 burden is on the wife to show that she has sufficient reason for refusing to live with her husband and the burden has not been discharged by her. learned Counsel for the respondent, on the other hand, contended that there is sufficient material on record to show that the offer made is not genuine Or bona fide; he further contended that burden of proof in regard to Sub-section (4) of Section 125 of the Code rests on the husband and not the wife. We have been referred to decisions of two learned single Judges of this Court in Sarada v. Kumaran 1977 Ker LT 942 : 1978 Cri LJ (NOC) 215 and Mammad v. Rukhiya 1978 Ker LT 875 : 1978 Cri LJ 1645. We also notice that there is another decision on the point in Gopalakrishnan Nair v. Thankamma 1970 Ker LT 403.

12. In Gopalakrishnan Nair's case 1970 Ker LT 403, Moidu J. on a consideration of Clause (4) and the first proviso to Sub-section (3) of Section 488 of the Code of 1898 (for short 'the old Code') came to the conclusion that the first proviso to Sub-section (3) as well as subsection (4) govern entire section including Sub-section (D- The judgment indicates that the burden is on the wife to make out 'just grounds' for refusal to live with the husband. But we notice that it was held that in that case the offer made by the husband was not bona fide and therefore the question of burden of proof did not really arise for consideration.

13. In Sarada's case 1977 Ker LT 42 : 1978 Cri LJ (NOC) 215 (Ker) the husband made an offer to maintain the wife if she lives with him. Janaki Amma j. held that the husband has failed to prove that there was an offer to take back the wife and there was refusal by her to live with him and therefore he is liable to pay maintenance to her (vide para. 13 of the judgment), in this view, it appears that the question of burden of proof regarding 'sufficient reason' did not really arise for decision in that case. We may also notice that the learned Judge was of the view that Clause (4) of Section 125 of the Code was in the nature of an exception to Sub-section (I) and when it is an exception to the general liability of the husband to maintain her under Sub-section (1) he must prove the existence of the circumstances which entitle him to put forward the exception and observed that burden of proof (regarding sufficient reason for the refusal of the wife to live with him) rests entirely on him.

14. In Muhammed's case 1978 Ker LT 875 : 1978 Cri LJ 1645. the wife refused to go and live with husband and wanted him to go and live with her 11 the tarwad house where her karanavan also was living and the relationship between the karanavan and the husband was not happy. She set up a custom whereunder the husband was bound to live in the wife's house. The custom was not accepted and it was held that the custom pleaded is not a sufficient reason for her refusal to live with her husband in his house. In that connection, Poti J. (as he then was) considered the question of burden of proof in regard to matters arising in Clause (4) Of Section 125 of the Code as also the second proviso to Clause (3) of Section 125 and held that while the husband has to prove adultery or the refusal of the wife to live with husband or that the spouses are residing separately by mutual consent, it is for the wife to show sufficient reason for her refusal to live with the husband. The learned Judge distinguished the observation in Narayan's case Or Sarada's case 1977 Ker LT 942 : 1978 Cri LJ (NOC) 215 (Ker) on facts. The principle laid down in this decision, according to the learned Counsel for the revision petitioner, requires re-consideration.

15. The decisions of other High Courts are conflicting. High Court of Lahore (see Ramsingh v. Mt. Rambai AIR 1943 Lah 223 : 44 Cri LJ 802). Gujarat High Court (see Bai Ganga v. Harijan Ghiman Shanker 1965 CD Cri LJ 387 (1)), High Court of Kamataka (see Kuntappa v. A. K. Desai (1972) 2 Mys LJ 415 : AIR 1973 Mys 50 and Mysore High Court (see Rahmath Saheb v. Zainbi 1973 Cri LJ 879) took the view that the burden of proof lay entirely on the husband. Nagpur High Court (see Emperor v. Shambai AIR 1941 Nag 175 : 42 Cri LJ 647), Allahabad High Court (see Ram Khela-van v. State : AIR1952All958 ), Punjab High Court (see Ranjit Kaur v. Dr. Avtar Singh AIR 1960 Puni 221 : 1960 Cri LJ 516), Bombay High Court (see Teia Bai v. Shankar Rao : AIR1966Bom48 ), Mysore High Court (see State ol Mysore v. Sivashankar AIR 1966 Mys 173 : 1966 Cri LJ 779] and Travan-core Cochin High Court (see Narayanan Neelakantan v. Amini Narayini AIR 1952 Trav Co 562 : 1953 Cri LJ 72) took the view that burden of proving 'just ground' or 'sufficient reason' lay on the wife.

16. We may now refer to the relevant provisions of Section 125 of the Code.

125. (1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, or....(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 allowance 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 that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

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.

Explanation If a husband has contracted marriage with another woman or keeps a mistress, it shall be consider- ed to be just ground for his wife's refusal to live with him.

(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.

17. Section 125 of the Code has enlarged the scope of the beneficiaries thereunder when compared to Section 488 of the old Code. Besides these changes in Sub-section (1), there is practically no other change in the other parts of the section except that the juxtaposition of the two provisos appearing below Sub-section (3) has now been reversed under the Code. In other words, the first proviso in the old Code relating to offer which may be made by the husband to maintain the wife and the refusal by her to live with him and the duty of the Magistrate to consider the grounds etc. has now been shown as second proviso, while the second proviso in Section 488 of the old Code stating that no warrant should be issued unless application has been made to the Court within a period of one year from the due date has now been shown as the first proviso. This reversal of the positions of the two provisos is of some significance.

18. As per the second proviso occurring below Sub-section (3) of Section 125, of the Code where the husband offers to maintain his wife on condition of her living with him and she refuses to live with him the Magistrate may consider the grounds for refusal stated by her and make an order under this section notwithstanding such offer if he is sal fe-fied that there is just ground for so doing. The proviso as we understand it, clearly spells out that the burden is on the wife, to put forward grounds in support of her refusal and to satisfy the Magistrate that the grounds are just. Failure on her part to do so will result in an adverse order against her under the section. If burden of proving 'just ground' under this proviso rests on the wife, it is not possible to hold that the burden of proving 'sufficient reason' under Sub-section (4) of Section 125 of the Code rests on the. husband. There is| no qualitative difference between the expression 'iust ground' mentioned in the proviso and the expression 'sufficient reason' mentioned in Sub-section (4).

19. It is argued that the proviso applies only to the stage of enforcement contemplated in Sub-section (3) of an order of maintenance passed under subsection (1) and therefore the burden of proof spelled out in the proviso cannot be applied in considering an offer made prior to the passing of the maintenance order under Sub-section (1). Reported decisions of various High Courts have taken conflicting views in this regard. Decisions in Mt. Roshan Bano v. Azim AIR 1943 Lah 59 : 44 Cri LJ 425. Ram Singh v. Mt. Rambai AIR 1943 Lah 223 : 44 Cri LJ 802, Ramiee Malviya v. Munnidevi Malviya : AIR1959All767 . Iqbalunnissa Begum v. Habeeb Pasha : AIR1961AP445 and Mehrun-nisa v. Noor Mohamed : AIR1971All138 support this contention, while the decisions in Ram Khe-lavan v. State : AIR1952All958 , Syed Ahmad v. N. P. Taj Begum AIR 1958 Mys 128 : 1958 Cri LJ 1201, Teia Bai v. Shankarrao : AIR1966Bom48 , Raniit Kaur v. Dr. Avtar Singh AIR 1960 Punj 221 : 1960 Cri LJ 516, Govindram Narandas v. Ratanbai Nathuram AIR 1956 Sau 105 and Shambu Reddy v. Ghalamma AIR 1966 Mys 311 : 1966 Cri LJ 291 took the contrary view. In Gopalakrishnan Nair v. Thankamma 1970 Ker LT 403, Moidu J. took the view that the proviso governs the entire section. In A. Ponnamma v. Neelakantan Nair 1967 Ker LT 258 : 1967 Cri LJ 1334 Isaac J- also had taken the same view.

20. The second proviso contemplates making 'an order under this section.' The use of the expression 'section' and not 'Sub-section' is significant. This has been done only to emphasize that the proviso governs not only Sub-section (3) but also Sub-section (1), since even at the stage of passing maintenance order it is open to the husband to make an offer. Under Sub-section (1), Magistrate has to be satisfied that the husband 'neglects or refuses' to maintain his wife. In considering the same. Magistrate has to apply his mind regarding rights of parties, offer made by husband, grounds urged by wife et cetera. The intention in incorporating the second proviso below Sub-section (3) is only to elucidate this particular aspect not only for the purpose of Sub-section (3), but also for the purpose of Sub-section (1)- If this proviso had been placed lust below subsection (1), a doubt would have arisen if an offer could be made at the enforcement stage covered by Sub-section (3). To avoid any such doubt the proviso has been placed below Sub-section (3). The relevant proviso was the first proviso in the old Code and its location led to a view that since the other proviso related exclusively to a warrant, this proviso also must relate only to the enforcement stage. It is to counter this view that, in enacting the new Code (of 1973) the juxtaposition of the two provisos has been reversed. We accept the view that the relevant proviso applies to the entire section. Under the proviso, burden of proving 'just ground' rests on the wife.

21. Janaki Amma J. in Sarada's case (1978 Cri LJ ( NOC) 215 ( Ker) viewed Sub-section (4) as an exception to Sub-section (1) and observed that burden of proof even regarding 'sufficient reason' is on the husband. Sub-section (4) cannot be treated as an exception to subsection (1)- As indicated by Hedge J. (as he then was) in Syed Ahmad v. N. F. Tai Begum AIR 1958 Mys 128 : 1958 Cri LJ 1201. the several Sub-sections cannot be considered in isolation and must be considered cumulatively since they form an integral whole. Looking at the picture in its entirety, and reading all these Sub-sections and the proviso together, we are satisfied that the burden of proof regarding 'just grounds' as spelled out in the proviso must lend colour to the burden of proof regarding 'sufficient reasons'7 under sub section(4) also. We affirm the decision in Mammad's case (1978 Ker LT 875): (1978 Cri LJ 1645) on the question of burden of proof. The observations to the contrary in Sarada's case (1977 Ker LT 942): (1978 Cri LJ (NOC) 215) are really obiter and according to us, with respect, do not reflect the correct position of law.

22. While it is true that burden of proving refusal to live with the husband rests on the husband and the burden of proving sufficient reasons rests on the 1981 Cri.L.J./120 XH wife, when both sides adduce evidence and marshali circumstances before the court, the matter has to be decided on an appreciation of evidence and the circumstances and not merely on the basis o burden of proof. Considering the high legislative purpose behind the provisions in Section 125 of the Code, even where the wife, on account of her lack of experience or other reasons, does not plead specific grounds or reasons for refusing to go back to her husband or does not adduce specific evidence in that regard, it is the duty of the court t0 examine the circumstances available in the case arid see if these circumstances are or are not sufficient to justify the wife's refusal to husband's offer.

23. On facts, first question is whether she refused to go back and live with her husband. This is dependent not only on her own state of mind and inclinations but also on the genuineness or bona fide nature of the offer made by the husband and the appreciation by the court of his real intention. He has no case that at any time prior to the proceedings he was willing to take her back. In his counter also he did not express any such willingness. We are not implying that merely because there was no prior willingness Or offer or that no offer wa' made in the counter the offer must be held to be lacking in genuinenes or bona fides; he has a right as contemplated in the proviso to Sub-section (3) of Sec tion 125 to make an offer even at the stage of implementation of the order already passed. He has also a right to make an offer and rely on th.e refusal by the wife as a ground to get the maintenance Order set aside under Sub-section (5/. Therefore, merely because his offer is belated, it cannot be rejected. The background of the case, the prior conduct of parties, the setting in which the offer has been made and the motivations behind the offer have to be looked into in considering the genuineness or the bona fides of the offer. In so considering the matter, the belatedness of the offer is a circumstance which along with the other circumstances, may assume importance in testing the genuineness or bona fides of the offer.

24. Far from making an offer or expressing willingness to take her back, the husband, in his counter asserted that there has been a divorce and the divorce is not faced with any legal difficulty. When the wife filed a suit challenging Ex's. Dl and D2, he took the stand that the documents are valid in fact and in law. The suit is still pending. The fact that an offer has been made at a belated stage by the husband who has been consistently contending that the so-called divorce effected under Ext. D2 is a valid divorce in law goes a lone way in revealing the true nature of the offer made by him. Without going into the dispute whether Exts. Dl and D2 were executed voluntarily or not, it is not difficult to appreciate the apprehension in the mind of P. W. l the wife that she will be in difficulty if she goes back to her husband, particularly in the light of the background of the case and the dispute be tween the parties. It is this apprehension which she expressed in examination when she stated that (Matter in Mala-yalam omitted Ed.) Learned Magistrate came to the conclusion that the offer made by the husband is not genuine or bona fide. Though his reasoning is not elaborate, we are of the opinion that the totality of the circumstances justifies the conclusion. In the light of this conclusion, her refusal to go back and live with him cannot lead to negation of the claim for maintenance made by her. In the background of the case and considering the past events and the pending litigation, we are not prepared to hold tha+ there are no good reasons justifying her refusal to go back and live with him.

25. No grounds are made out to interfere with the order passed by the learned Magistrate. The revision petition is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //