HEMAVATHIAMMA Vs. KUMARAVELU MUDALIAR

JUDGEMENT

(1.) This appeal under Section 175 of the Provincial Insolvency Act, 1920, hereinafter called the Act, raises a question of some nicety on which there is no precedent of this court or of the Supreme Court it arises in this way:

(2.) The appellant is the wife of the respondent and they will be referred to as the wife and the husband respectively. The husband having neglected to support the wife, the latter sued for maintenance and obtained a decree directing payment of periodical maintenance at Rs. 15 a month. From his subsequent conduct, it appears that the husband was not disposed to comply with the decree, though he was earning and had the means to support the wife. When the wife sought to execute the decree by arrest and detention in Civil Prison, the husband contended that he had no means to pay which contention, however, was rejected by the Civil Judge, Bangalore. in R A 173/56. Thereupon, the husband filed a petition for adjudging him as insolvent alleging that he was indebted to the wife for more than Rs. 1000, that he owns no property and is unable to pay his debt. It is relevant to state that the husband did not allege that he has any debt besides his obligation to support his wife. The wife, the sole respondent to the said petition, opposed the adjudication, contending that the husband as carpenter earns daily wages of not less than Rs. 10 and though and the means, he deliberately failed to comply with the decree and the petition was not bona fide. She further contended that the liability of the husband is not a provable debt in insolvency, since the husband cannot get a release of his obligation to support his wife by recourse to insolvency.

(3.) The contention of the wife found favour with the Subordinate Judge, who came to the conclusion that the obligation of the husband to support his wife is personal which he is bound to do out of his personal earning irrespective of the owning any property and that even on the admission of the husband, he was earning daily wages of Rs. 2 and that petition was not bona fide.