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Kandaswami Gounder Vs. Nachammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case Nos. 839 and 850 of 1961
Judge
Reported inAIR1963Mad263; 1963CriLJ166
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488, 488(1), 488(3) and 488(4)
AppellantKandaswami Gounder
RespondentNachammal
Appellant AdvocateR. Kallappan, Adv.;Public Prosecutor
Respondent AdvocateK.V. Ramaseshan, Adv.
DispositionPetition dismissed
Cases ReferredBayanna v. Devemma
Excerpt:
- - 4 and 5 would clearly show that the petitioner was living with myethal and this would justify the award of maintenance on the ground that the petitioner was keeping a concubine. the learned additional first class magistrate has considered this fact in paragraph 7 of his judgment and observed that it was easy to get such an answer from a woman of weak mind. devanai ammal, air1950mad357 ,that when a person marries a second wife and the first wife applies for separate maintenance, any offer by the husband to take her back and treat her well cannot be taken to be sincere and an order for separate maintenance would be quite justified......contended that in order to justify the award of maintenance to a wife under section 488 of the criminal procedure code the court should find that the husband refused or neglected to maintain her and that the mere fact that the husband has contracted a second marriage cannot amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of sub-section (1) of section 488 of the criminal procedure code. he relied on the decisions in pullamma v. thathalingam, : air1950mad357 bela rani chatterjee v. bhupal chandra chatterjee, : air1956cal134 and iqbalunnissa begum v. habib pasha, : air1961ap445 in support of his contention. the decision in : air1950mad357 that the mere fact that the husband has taken a second wife after the first wife refused to join him,.....
Judgment:
ORDER

Sadasivam, J.

1. Petition to revise the order of the Additional First Class Magistrate, Pollachi, under Section 488(1) of the Criminal Procedure Code, directing the petitioner to pay Rs. 20 per mensem to his wife and Rs. 5 per mensem to his child for maintenance. The petitioner married the respondent about 6 1/2 or 7 years prior to this case and lived with her for two years. Then the respondent became 'pregnant and gave birth to a child, Easwaraswami. Three months after the birth of the child, the respondent became demented. But she subsequently recovered her mental health. The respondent is living in her father's house. She claimed maintenance for herself and her child on the ground that the petitioner married a second wife, and refused and neglected to maintain her. The respondent denied the fact of his having married a second wife and offered to take back his wife and child. The learned Additional First Class Magistrate did not accept the case of the respondent, but accepted that of the petitioner and awarded maintenance of Rs. 20 per mensem to the wife and Rs. 5 per mensem to the child.

2. The learned advocate for the petitioner contended that the alleged second marriage has not been strictly proved in this case. I am unable to accept this contention. P. W. 2, Gopala Iyer, is an archaka in Sandamman Koil and he deposed that the respondent paid Rs. 2-8-0 obtained the receipt Ex. P4 and married Myeathal on the 14th July 1960 in the temple. The learned Additional First Class Magistrate has accepted the evidence of P. W. 2, Gopala Iyer. It was argued by the learned advocate for the petitioner that P. W. 2, Gopala Iyer, has not spoken to the ceremonies of the marriage such as tying of tali. But P. W. 2, Gopala Iyer, has definitely stated that the petitioner herein married Myeathal and it was not suggested to him that any of the essential ceremonies of the marriage did not take place. The learned Additional First Class Magistrate has also taken into consideration the leave letter Ex. P.2 sent by the petitioner for getting married and the evidence of P. Ws. 3 and 4 about the petitioner and Myeathal living together in coming to the conclusion that the petitioner married second wife. Even assuming that there was no marriage at all the essential requisites between the petitioner and Myeathal, the evidence ofP. Ws. 4 and 5 would clearly show that the petitioner was living with Myethal and this would justify the award of maintenance on the ground that the petitioner was keeping a concubine.

3. The leasned Advocate for the petitioner referred to the evidence of P. W. 5 that her husband asked her to go and live with him. The learned Additional First Class Magistrate has considered this fact in paragraph 7 of his judgment and observed that it was easy to get such an answer from a woman of weak mind. He has found, at the end of that paragraph, that the present offer of the petitioner is not bona fide and is an after thought. It is clear from the decision in Senapathi Mudaliar v. Devanai Ammal, : AIR1950Mad357 , that when a person marries a second wife and the first wife applies for separate maintenance, any offer by the husband to take her back and treat her well cannot be taken to be Sincere and an order for separate maintenance would be quite justified.

4. The learned Advocate for the petitioner contended that in order to justify the award of maintenance to a wife under Section 488 of the Criminal Procedure Code the Court should find that the husband refused or neglected to maintain her and that the mere fact that the husband has contracted a second marriage cannot amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of Sub-section (1) of Section 488 of the Criminal Procedure Code. He relied on the decisions in Pullamma v. Thathalingam, : AIR1950Mad357 Bela Rani Chatterjee v. Bhupal Chandra Chatterjee, : AIR1956Cal134 and Iqbalunnissa Begum v. Habib Pasha, : AIR1961AP445 in support of his contention. The decision in : AIR1950Mad357 that the mere fact that the husband has taken a second wife after the first wife refused to join him, cannot be said to amount to cruelty, requires reconsideration in view of the subsequent legislation making bigamy by a husband also an offence and the amendment of Section 488 of the Criminal Procedure Code by the Act IX of 1949 making it a just ground for a wife to refuse to live with her husband if he contracts a second marriage. It is true that the explanation has been added only to proviso (1) to Sub-section (3) of Section 488, Criminal Procedure Code by the amendment of 1949, and that the proviso governs only Sub-section (3) and not Sub-section (1) of Section 488 of the Criminal Procedure Code as pointed out in : AIR1956Cal134 and : AIR1961AP445 and other decisions. But, as pointed out in Ramji Malviya v. Munnidevi Malviya, : AIR1959All767 though the proviso governs only Sub-section (3), the provision that remarriage by the husband is a just ground for the wife's refusal to live with him lays down a general principle, which must be borne in mind when it is to be considered whether the wife's refusal to live with her husband is without any sufficient reason within the meaning of Sub-section (4) of Section 488. It is pointed out in that decision that Sub-section (4) governs the whole section, including Sub-section (1) of Section 488, Cri. P. C. It is clear from the decision that a wife, who refused to live with her husband on account of his remarriage, is therefore not prevented by Sub-section (4) from claiming maintenance allowance under Sub-section (1). But the claim of the wife to recover maintenance was negatived in that case on the ground that she deserted him and it was held the husband's remarriage does not restore to her the right she had prior to the desertion. In the decision in : AIR1956Cal134 it has been held that it is not permissible to pray in aid the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance Act for the purpose of construing Sub-section (1) of Section 488 of the Criminal Procedure Code. In my opinion, it is proper for a Court, dealing with a petition under Section 488 of the Criminal Procedure Code to have regard to the personal law of the parties, and, in fact in the decision in Bayanna v. Devemma, : AIR1954Mad226 it was held in this Court that by virtue of Section 3 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, the first wife is entitled to live separately and claim separate maintenance, when her husband takes a second wife. So the respondent's residing separately is legal, and once she lawfully resided separately the duty of the husband is to give her separate maintenance Under Section 488 of the Criminal Procedure Code and his refusal to do so would justify the awarding of separate maintenance under Section 488(1) of the Criminal Procedure Code.

5. For the foregoing reasons, the finding of the learned Additional First Class Magistrate that the petitioner neglected to maintain his wife and that the wife is entitled to separate maintenance is correct. The learned advocate for the petitioner was not able to show how the maintenance awarded in this case is excessive. There is no ground to interfere with the quantum of maintenance. The criminal revision petition is dismissed.


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