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Kandaswami Moopan Vs. Angammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 1357 of 1959
Judge
Reported inAIR1960Mad348; 1960CriLJ1098
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488
AppellantKandaswami Moopan
RespondentAngammal
Cases Referred and Mohomed Hussein Abdul Kadar v. Emperor
Excerpt:
.....entitling wife to live separate and claim maintenance - husband able-bodied could work and give wife maintenance - revision petition dismissed. - - the marriage was not opposed on the ground that he was within the prohibited degrees, but apparently because the husband has taken a dislike of the brother-in-law proposed by the wife as his son-in-law. 20/- per month as well as a maintenance of rs. (3) the defeated husband has sought to file this revision petition. it may well be so, because it is extremely unlikely that this elderly woman would seek to contract an immoral alliance which would bring her down in the eyes of the neighbouring public and also jeopardise the chances of her daughter being married properly. therefore, if the husband is always willing and ready to maintain..........be about rs. 700 per annum and that the husband also was able-bodied and could work, gave the wife a maintenance of rs. 20/- per month as well as a maintenance of rs. 5/- each for the daughter, subbammal, and the son, veluswami, till they attained majority.(3) the defeated husband has sought to file this revision petition. the points for determination which have been urged as grounds for the admission of this petition are three in number.(4) first of all, we have got to see whether this allegation made by the husband about the unchastity of his wife would constitute legal cruelty and would by itself entitle her to live separately from him and claim separate maintenance. there can be no doubt that the settled case-law now on the subject is that a deliberate attribution of immorality.....
Judgment:
ORDER

(1) This revision is preferred against the order made by the Additional First Class Magistrate at Kulitalai in M. C. No. 58 of 1959.

(2) The petitioner is the husband of the respondent, Angammal. The marriage took place about 20 years ago, and this couple has got two children, one of whom is sufficiently grown up to have the question of her marriage being taken up. It is very unfortunate that this couple have fallen out and they have been living separately. One of the many causes which seems to have divided the husband and wife is the fact that the wife wanted apparently to get her daughter married to her own brother and which the husband opposed.

The marriage was not opposed on the ground that he was within the prohibited degrees, but apparently because the husband has taken a dislike of the brother-in-law proposed by the wife as his son-in-law. It is in these circumstances that this petition for maintenance was filed by the wife. The husband, first of all, stated that the wife had deserted him of her own accord, and, secondly, that he has always been willing to maintain her, and, thirdly, that the wife has left him in order to promote her illicit intimacy with one Velayudam who is living two doors off from the husband's house. The husband also pleaded that his means were straitened and that he could not give separate maintenance for the wife, as prayed for by her.

(2a) The learned Magistrate went into the matter thoroughly and came to the conclusion that the husband and wife had fallen out and that the offer by the husband to take back the wife and maintain her is not bona fide and that his allegation that his wife is in illicit intimacy with Velayudam constitutes legal cruelty within the meaning of Sec. 488, Cr.P.C., justifying her to live apart from her husband and claim separate maintenance. The learned Magistrate, therefore, calculating that the income of the husband would be about Rs. 700 per annum and that the husband also was able-bodied and could work, gave the wife a maintenance of Rs. 20/- per month as well as a maintenance of Rs. 5/- each for the daughter, Subbammal, and the son, Veluswami, till they attained majority.

(3) The defeated husband has sought to file this revision petition. The points for determination which have been urged as grounds for the admission of this petition are three in number.

(4) First of all, we have got to see whether this allegation made by the husband about the unchastity of his wife would constitute legal cruelty and would by itself entitle her to live separately from him and claim separate maintenance. There can be no doubt that the settled case-law now on the subject is that a deliberate attribution of immorality to a wife has to be construed as legal cruelty, entitling the wife to live separately and claim maintenance, (vide Gangalamma v. Venkatarami : AIR1950Mad385 , Narayanan Neelakantam v. Amini Narayani Subbamma v. Venkata Reddi : AIR1950Mad394 . In this case that the husband made this allegation is not disputed and that the allegation has not been proved is the finding of the learned Magistrate.

The learned Magistrate has held that the allegation was unfounded. It may well be so, because it is extremely unlikely that this elderly woman would seek to contract an immoral alliance which would bring her down in the eyes of the neighbouring public and also jeopardise the chances of her daughter being married properly. In any event, the Magistrate cannot be said to have come to the improper conclusion that his allegation would amount to legal cruelty entitling the wife to live separately and claim maintenance.

(5) The next point taken is the offer to take back the wife. It is no doubt true that the basis for an application under Sec. 488, Cr.P.C., is that the husband refused or neglected to maintain his wife. Therefore, if the husband is always willing and ready to maintain his wife, she can get separate maintenance, only if she is able to show that she has good and sufficient grounds for living separately. But the lower Court has refused to take this offer seriously and has characterised it as not being bona fide. The circumstances of the case also show that it is extremely unlikely that the husband was really bent upon taking back his wife and treating her properly. He himself says that she has illicit intimacy with Velayudham and is on the look-out for continuing that liaison with him. If that were so, it is not credible that the husband would like to take back his wife and live with her.

But, even assuming that he was a sufficiently complacent husband to take back his wife notwithstanding her unchastity, the other circumstances show that the rift between the husband and wife has become really irremediable. The husband has already filed an application for restitution of conjugal rights, and this is being resisted by the wife. It is possible that, having become middle-aged people with set views of their own, the differences between them cannot be bridged, especially as the husband has made unfair accusation against her. Therefore, it has been enjoined by several decisions that such last-minute offers to take back the wife are open to scepticism, as they are put forward with no other object than to ward off the obligations arising in civil and criminal proceedings for supporting the wife.

It is enough to cite Baloch Khan v. Zainib Bibi, AIR 1931 Lah 561 : 32 Cri LJ 1251; Pritam Singh v. Mt. Basant Kaur, AIR 1926 Lah. 353 : 27 Cri LJ 507 Shamsherkhan v. Siddiqunnissa : AIR1953All720 , Ganesh Sao v. Sheomala Devi, AIR 1950 Nag 168 : 51 Cri LJ 1141; B. L. Decruz v. A. W. Decruz, AIR 1938 Rang 25 : 39 Cri LJ 287; Rajeswariamma v. K. M. Viswanath, and Senapathi v Deivanai Ammal : AIR1950Mad357 . I do not find any reason to differ from the conclusion of the learned Magistrate, who had the opportunity of seeing the parties before him, that he did not consider the offer to take back the wife as a bona fide one.

(6) Then it is argued that the husband is not in flourishing circumstances and that the income got by him would not justify maintenance given by the learned Magistrate. I must first of all point out that it is the settled practice of this High Court not to interfere in revision with the quantum of maintenance which is awarded by Magistrates unless it is so manifestly perverse that it requires interference without any further argument on the subject. Besides, the possession of property is not at all the criterion for awarding maintenance under Sec. 488. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife.

Therefore, our Courts have gone to the extent of laying down that, notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu or a monk, he must support his wife, so long as he is able-bodied and can eke out his livelihood and support his wife. In fact, in one case which was argued before the Bombay High Court, when a man pleaded that he entered the holy orders the Bombay High Court said that in such a case he should doff off his orange robes and get employed and earn money in order to support his wife and children.

The case-law on the subject will be found in Dhani Ram v. Mst. Ram Dei : AIR1955All320 , Prabhulal v. Parvatibai, Abdul Wahab v. Mt. Sugrabi 37 Cri LJ 86 : 159 Ind Cas 120 (Nag) in re, Kandaswami Chetty, AIR 1926 Mad. 346 : 27 Cri LJ 350; Kantivijayaji v. Emperor, AIR 1932 Bom 285 : 33 Cri LJ 625, and Mohomed Hussein Abdul Kadar v. Emperor, AIR 1940 Bom. 344 : 42 Cri. LJ 101. Therefore, we need not make a meticulous inventory of the assets of this husband in order to calculate the exact maintenance which has got to be awarded.

In fact, even under the Hindu law, the obligation to support the wife is a personal obligation which attaches from the moment of marriage. It is independent of possession of property (see Mayne's Hindu Law, 11th edition, page 818). In this case, I have already set out the maintenance awarded by the Magistrate, and in these days of high cost of living it is certainly not unconscionable that an amount of Rs. 20/- per month should be awarded to the wife and Rs. 5/- to each of the two children of this petitioner.

(7) Learned counsel for the petitioner finally brings to my notice that it would appear that in a petition for restitution of conjugal rights which has been filed in the Sub-Court by the husband, temporary alimony as well as costs for opposing the application has been awarded by the learned Subordinate Judge. I have not got all the facts before me. If such a course had been adopted, then, one of two courses is possible for the petitioner.

He can move the Subordinate Judge by placing before him the certified copy of the maintenance order and get that order vacated or he may go to the Magistrate with the order made by the Subordinate Judge and then get the maintenance awarded either altered or modified. Therefore, the fact that the Subordinate Judge has undertaken upon himself the wholly supererogatory task of providing alimony in a suit for restitution is neither here nor there.

(8) The net result of this analysis is that there are no grounds to interfere and this revision is dismissed.

CD/V.R.B.

(9) Revision dismissed.


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