STATE OF MYSORE Vs. SIVASHANKAR MURIGEPPA MAMADAPUR

JUDGEMENT

(1.) The sole question that arise for decision in this reference by the First Additional Sessions Judge, Dharwar is whether a husband can raise a plea that his wife has been living in adultery since the date of the Order for maintenance, during the course of the proceedings for enforcement of the order of whether he should file a separate application for cancellation of the order.

(2.) The facts leading to this reference are not in dispute. The respondent Shantadevi filed an application on 25-2-1962 against her husband Shivasankar for maintenance on the ground that her husband had neglected and refused to maintain her by driving her out of house. While denying this allegation, the husband pleaded that his wife had been living in adultery and that she was not entitled to any maintenance. On the date of hearing the husband remained absent and an ex parte order allowing maintenance at Rs. 30 per month was passed in favour of the wife on 13-8-1963. The husband's application for setting aside the ex parte order on the ground that he had been prevented by illness from attending the Court on the date of hearing was dismissed by the Magistrate. The wife filed an application under Section 488(3) of the Code of Criminal Procedure for recovery of Rs.180/- towards arrears of her maintenance. The husband appeared and pleaded that his wife had been living in adultery even after the date of the maintenance order and he was therefore not liable to pay her any amount. The learned Magistrate overruled this objection on the ground that a similar defence had been taken by the husband in the main petition and that in his opinion the objection was intended to delay and defeat the claims of the wife.

(3.) Being aggrieved by this order, the husband moved the Sessions Judge by an application (Criminal Petition No. 33 of 1963) questioning the correctness of the order passed by the learned Magistrate. The Sessions Judge took the view that it was open to the husband to prove that his wife had been living in adultery since the date of the order and that the order for execution passed against the husband without enquiry into his contention was opposed to law. That is why he has made the present reference.