NARAYANAN NEELAKANTAN Vs. AMINI NARAYANI

JUDGEMENT

(1.) THE counter petitioner in M. C. No. 60 of 1124 on the file of the Division First Class Magistrate's Court, Kottayam, is the Revision petitioner in this case. The Miscellaneous case la one filed by the wife and minor daughter of the Revision petitioner under Section 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 s 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 Section 399 Sub-section (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 - Mt. Roshanbanu v. Assim AIR 1943 Lah. 59, - Emperor v. Shambai AIR 1041 Nag. 175 -Tota v. Mt. Durgi 30 Cri. L. J. 261 (Lah. ).

(2.) APART from the question of burden of proof there is sufficient 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 Trav. L. J. (S. N.) 151 the Travancore High Court held that where in the written statement filed by the husband in proceedings under Section 366 of the Travancore Criminal Procedure Code, Act V of 1067 corresponding to Section 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 Trav. L. T. (S. N.) 18 it was held that the allegation of immorality against the wife made by the husband in the course of proceedings under Section 366 is not a sufficient reason to entitle the wife to live away from the husband. In - Yamuna Bai v. Narain Moreshwar 1 Bom. 164 it was held that unfounded imputation of wife's unchastity would not amount to legal cruelty. But in - Kamala Gangalamma v. Venkatarami 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 Dooksha etc. In - Subbama v. Venkata Reddi the same view was held.

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