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Jambapuram Subbama Vs. Jambapuram Venkata Reddi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Case NumberCriminal Revn. No. 900 and Cri. Revn. Petn. No. 848 of 1948
Judge
Reported inAIR1950Mad394
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488; Evidence Act, 1872 - Sections 112
AppellantJambapuram Subbama
RespondentJambapuram Venkata Reddi
Appellant AdvocateAssistant Public Prosecutor;K. Kalyanasundaram, Adv.
Respondent AdvocateR.V. Raghavan, Adv.
Cases ReferredEmperor v. Ranchhoddas Narottamdas
Excerpt:
.....- maintenance-petition for wife herself and minor - 'x' (minor) after becoming major on 09.10.1948 able to maintain himself - after 09.10.1948 he cannot claim maintenance under section 488 - held, petitioner provided with maintenance for 'x' at rs. 15 per month till he becomes major and maintenance for herself at rate of 100. - - though a child may mean 'a child in the womb,'as well as this old man of 77, and a person below 14, for the purposes of children's act etc,,the meaning of the word in section 488, which contains no definition of it, must be taken to be a 'minor' whether under the indian majority act, or the court of wards act or the guardian and wards act. it is, therefore, better to treat the ruling in kannia naidu v......till he became is. the presumption under section 112, evidence act should be drawn by all courts, civil criminal or revenue, governed by the indian evidence act. the respondent did not offer in the lower court or here to maintain the petitioner or pullanna. his case was that he never maintained them for twenty years past and was not bound to maintain them in future also. the respondent's counsel stated that the respondent proposed to prove the petitioner's immorality, his non-access etc., in the civil court, in due course, if and when she filed a suit there for claiming her full right of maintenance, at rs. 100 a month for herself and rs. 50 for her son, etc. he said that the respondent had also raised these contentions in a partition suit filed already by the petitioner on behalf of.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. The petitioner, Subbamma, had filed a petition, on 9th October 1947, in the lower Court, under Section 488, Criminal P. C., against her husband, the respondent, claiming maintenance for herself, at Rs. 100 a month, and for Pullanna, her son aged 17 on the date of the petition, at Rs. 50 a month. She claimed to be the third wife of the respondent and to have married him some twenty years back. She delivered two children who died soon after birth. So, the respondent married P. W. 2's daughter as his fourth wife. This fourth wife delivered a son, Pedda Raja Reddi, and died. Thereafter the petitioner delivered her son Pulla Reddi alias Pullanna. Misunderstandings between her and the respondent arose when the respondent celebrated the marriage of his brother's daughter, Sivamma, and wanted to give her two seers of gold and Rs. 2000 in cash two which she strongly objected and even sent round notices to his debtors not to pay their dues to him. So, the respondent began beating her, and his mother and Sivamma also joined in this illtreatment. She and her son were not given proper food and were finally beaten and driven out of the house on 24th September 1947. She filed a criminal complaint against him regarding that. She alleged that she and her son were doing cooly and eking out their livelihood. She added that the respondent was worth a lakh of rupees but had concealed his gold and cash and valuables in order to defeat her rights for maintenance and her son's rights for partition and maintenance. P. W. 2, the father of the respondent's fourth wife, supported the petitioner's story regarding Pullanna being the respondent's son and the respondent having a lakh of rupees, and the petitioner's leaving the respondent's house about September 1947. So did P. W. 5, the respondent's sister's husband and P. Ws. 3 and 4, big ryots of the village.

2. The respondent admitted the petitioner's marriage to him, but said that she left him some three years after the marriage, and that he never beat or ill-treated her or refused proper food to her. He was supported by a washerman and some other witnesses examined on his behalf. He alleged that he was not the father of Pullanna, and that Pullanna was born to the petitioner by some paramour of hers. So he denied his liability to maintain the petitioner or Pullanna. The lower Court found that the allegation regarding the beating, starvation and physical cruelty by the respondent had not been proved, and, so, dismissed the petition, though it found the marriage to be true. It considered, rather curiously and, of course, erroneously, that the conclusive presumption, under Section 112, Evidence Act, in favour of Pullanna's being the son of the respondent, was one which only a civil Court trying a maintenance suit should draw and not a criminal Court hearing a petition under Section 488, Criminal P. C. So it dismissed the petition. Hence this revision petition.

3. The learned counsel for the petitioner urged that there was 'legal cruelty' in this case sufficient to entitle the petitioner to live apart from her husband, the respondent, and yet claim maintenance, since the respondent had attributed immorality to her deliberately and falsely. He urged also that, under Section 112, Evidence Act, Pullanna must be presumed to be the respondent's son and given the maintenance due to him under Section 488, Criminal P.C., as a 'child.' I agree. Deliberate attribution of immorality falsely to a wife by a husband has been held in this country, more than 2000 years ago, by Chanakya the Prime Minister of the Mauryas, to be 'legal cruelty' sufficient to entitle the wife to live separately from her husband and yet claim maintenance, though Chanakya was of opinion that a slight beating of the wife or cessation of conjugal relations with her during long periods of Deeksha (religious vows) would not amount to 'legal cruelty' sufficient to entitle her to live separately and claim maintenance. The respondent has stated in the lower Court that the petitioner's son Pullanna, born to her while she still remained his wife, was not born to him, though P. Ws. 1 to 5 had sworn that he was born to him. He did not also prove the impossibility of his access to her at the time when this son could have been conceived. The son Pullanna would, therefore, be presumed to be the respondent's son under Section 112, Evidence Act, and, so, prima facie, the respondent must be taken to have deliberately attributed immorality falsely to his wife, the petitioner, and that too in a very pointed form by alleging that the immorality bore fruit also, in the shape of this son. Hence, subject to proof of impossibility of access etc., in a maintenance suit if and when instituted in a civil Court, the petitioner will be entitled to live separately and claim maintenance from the respondent for herself and her son till he became is. The presumption under Section 112, Evidence Act should be drawn by all Courts, civil criminal or revenue, governed by the Indian Evidence Act. The respondent did not offer in the lower Court or here to maintain the petitioner or Pullanna. His case was that he never maintained them for twenty years past and was not bound to maintain them in future also. The respondent's counsel stated that the respondent proposed to prove the petitioner's immorality, his non-access etc., in the civil Court, in due course, if and when she filed a suit there for claiming her full right of maintenance, at Rs. 100 a month for herself and Rs. 50 for her son, etc. He said that the respondent had also raised these contentions in a partition suit filed already by the petitioner on behalf of Pullanna as his guardian.

4. Taking all the circumstances into consideration, I am of opinion that I should give interim maintenance to the petitioner, and also to Pullanna as far as he is eligible, at some reasonable rate till the matter goes to the civil Court and it fixes it. I purposely fix the rates at the minimum possible. I direct the respondent to pay the petitioner maintenance at Rs. 25 per month from the date of her petition till the civil Court alters it in any suit instituted there, and direct him to pay or deposit the arrears till 1st December 1949 within three months from today, and to pay the monthly allowance of December 1949 and January 1950, by 10th January 1950, and the monthly allowance thereafter by 10th of that month.

5. As regards Pullanna, the petitioner's son, I am of opinion that he can get maintenance only for one year from the date of the petition, as he admittedly attained the age of 18 by 9th October 1948. I consider that a 'child' entitled to maintenance under Section 488, Criminal P. C., must be a minor (see the Bench Ruling of the Bombay High Court in Emperor v. Ranchhoddas Narottamdas, (1949) 50 Bom. L. R. 281: (A. I. R. (36) 1949 Bom. 36: (1949) Cri. L. J. 630), that is, normally below 18 years, though, if he is a ward under the Court of Wards or a person for whom a guardian has been appointed by Court, the age may perhaps be advanced to 21. I am unable to agree with the contention of the learned counsel for the petitioner that a 'child' for the purposes of Section 488, Criminal P. C., may be of any age, and need only be unable to maintain itself. The petitioner's counsel urged that 'child' in Section 488, Criminal P. C., means only 'progeny.' If that were so, a man of 77, unable, owing to senility, to maintain himself, can sue his father aged 97 for maintenance, as his 'child.' This is manifestly absurd. Though a child may mean 'a child in the womb,' as well as this old man of 77, and a person below 14, for the purposes of Children's Act etc,, the meaning of the word in Section 488, which contains no definition of it, must be taken to be a 'minor' whether under the Indian Majority Act, or the Court of Wards Act or the Guardian and Wards Act. The Bench Ruling in Emperor v. Ranchhoddas Narottamdas, (1949) 50 Bom. L. R. 281: (A.I.R. (36) 1949 Bom. 36 : (1949) Cr. L. J. 630 takes this view, and I agree with it.

6. The petitioner's counsel relied on the ruling of Lakshmana Rao J. In Kanniah Naidu v. Rajammal : AIR1941Mad685 for the position that a 'child' in Section 488 need not be always a minor. I have looked into the ruling. It does not contain sufficient facts in that case to see exactly what the learned Judge meant. He calls the person granted maintenance there 'a girl,' showing thereby that she was not yet an adult woman. Perhaps she was above 18 and below 21, and was wholly unable to maintain herself, being possibly a congenital idiot or insane person or born blind etc. It is, therefore, better to treat the ruling in Kannia Naidu v. Rajammal : AIR1941Mad685 as one intended only to apply to the facts of that case, and to hold a 'child' under Section 488, Criminal P. C., whether boy or girl, to be 'a minor' as held in the case in Emperor v. Ranchhoddas Narottamdas, (1949) 50 Bom. L. R. 281: (A. I. R. (36) 1949 Bom. 36 : (1949)) Cri. L. J. 630. Fortunately, in this case, Pullanna, after he became 18 on 9th October 1948, has been able to do cooly and maintain himself, and cannot claim maintenance under Section 488 from the respondent from 9th October 1948 even on that ground. So, finally, I give Pullanna maintenance at Rs. 15 a month from the date of the petition for one year at the end of which he became 18. I direct the respondent to pay the Rs. 180 due to Pullanna as maintenance within three months from today.


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