NEELAKANTAN Vs. AMMINI NARAYANAN

JUDGEMENT

(1.) The counter petitioner in M.C. No. 60 of 1124 on the file of the Division First Class Magistrates Court, Kottayam, is the Revision petitioner in this case. The Miscellaneous case is one filed by the wife and minor daughter of the Revision Petitioner under S.399 of the Travancore Criminal Procedure Code for maintenance. The petition was filed on the ground that the counter petitioner in the lower court refused to maintain the petitioners and they claimed a monthly allowance of Rs. 30 for the 1st petitioner and Rs. 10 for the 2nd petitioner. The counter petitioner in the lower court admitted that he was not maintaining the petitioners but contended that the 1st petitioner refused without any sufficient reason to live with him and offered to maintain the petitioners if they would live with him. The lower court took the view that the burden of proving that the 1st petitioner refused to live with the counter petitioner without sufficient reason was on the counter petitioner and that since he did not discharge that burden he is liable to maintain the petitioners. I do not think that this view of the learned Magistrate is correct. Under S.399 sub-s. (4) of the Travancore Criminal Procedure Code a wife is not entitled to get a separate maintenance from her husband under the section if without any sufficient reason she refuses to live with him. In view of the admission of the 1st petitioner that she is not living with the counter petitioner and of the offer of the counter petitioner to maintain her if she would live with him, it is for the 1st petitioner to prove that there is sufficient reason for her refusal to live with her husband. A wife is not entitled to refuse an offer by the husband to maintain her if she would live with him and to claim separate maintenance unless she is able to make out that there is sufficient reason for her refusing to live with him (vide AIR 1943 Lah. 59 Mt. Roahamband v. Azim) AIR 1941 Nag. 175 (Emperior v. Shembai), 30 CriLJ 261 (Tota v. Mt. Durgi).

(2.) Apart from the question of burden of proof there is deficient material in this case for holding that there is good reason for the 1st petitioner for refusing to live with the counter petitioner. In the written statement filed by the counter petitioner he has imputed unchastity to his wife. He has reiterated that accusation when he gave evidence in the case. He has not however attempted to adduce any independent evidence to prove this accusation. I am of opinion, that an unfounded imputation of unchastity about the wife by her husband is sufficient reason for her refusing to live with him. There is difference of opinion on the question as to whether such an imputation would amount to legal cruelty. In 16 TLJ Short Notes P. 151 the Travancore High Court held that where in the written statement filed by the husband in proceedings under S.366 of the Travancore Criminal Procedure Code, Act V of 1067 corresponding to S.399 of Act VIII of 1117 he imputes incontinence to the wife such imputation constitutes sufficient reason for her refusing to live with him. But in 9 T.L.T. Short Notes page 18 it was held that the allegation of immorality against the wife made by the husband in the course of proceedings under S.366 is not a sufficient reason to entitle the wife to live away from the husband. In ILR 1 Bom. 164 (Yamuna Bai v. Narayan Moreshwar) it was held that unfounded imputation of wifes unchastity would not amount to legal cruelty. But in AIR 1950 Mad. 385 (Kamala Gangalamma v. Venkitarami Reddi) it was held that deliberate accusation of immorality of the wife would fall under the definition of legal cruelty and would entitle the wife to live separate from the husband and to claim separate maintenance. His Lordship Panchapakesa Aiyar observed thus in that case: Chanakya, the great Prime Minister of the Mauryas, has proclaimed this more than 2200 years ago in his Artha Sastra. In India, this kind of thing has always been considered legal cruelty though not small beatings of wife, cessation of conjugal relations with her for long periods of Deeksha etc. In 1950 Mad. 394 (Subhamma v. Venkata Reddi) the same view was held. Whether an unfounded imputation of unchastity about the wife will amount to legal cruelty or not I have no doubt that it is sufficient reason for the wife to refuse to live with the husband. S.399(4) only requires that there must be sufficient reason for the wife to refuse to live with her husband. Under the old Indian Criminal Procedure Code a wife could refuse to live with her husband only for two reasons, named (1) the husband living in adultery and (2) his habitual cruelty to her. But the present Code empowers the Magistrate to award separate maintenance to a wife who refuses to live with her husband if there is sufficient reason for doing so. I am of opinion that in this case the 1st petitioner has sufficient reason for refusing to live with the counter petitioner. The lower court was therefore justified in awarding the petitioners separate maintenance.

(3.) The rate of maintenance fixed by the lower court does not appear to be unreasonable. I therefor confirm the order of the lower court and dismiss this revision petition.