VELAYUDHAN Vs. SUKUMARI

JUDGEMENT

(1.) THE husband in a proceeding under S.488 Cr. PC. is the revision petitioner. Against him the wife moved for maintenance for herself, and the two children born to her of him. THE paternity of the children, and the status of the petitioner as wife were admitted. But the husband's main contention was that the wife is not entitled to separate maintenance. THE court below has awarded maintenance to the children at the rate of Rs. 15 each, and separate maintenance to the wife at the rate of Rs. 30 per mensem. Under the proviso to subsection (3) of S.488 Cr. PC. the magistrate is to consider the grounds of refusal on the part of the wife to live with the husband, and if the court is satisfied that there are just grounds for such refusal, the court may make an order awarding separate maintenance.

(2.) THE grounds alleged in the present case for living away from the husband are: (1) Cruelty; (2) imputation of unchastity (this allegation was not raised in the petition, but raised only in the deposition before court); and (3) his disinclination physically to function as husband.

(3.) THUS, the trend of the decisions is to the effect that S.488 Cr. PC. is concerned only with the maintenance of wife and children. Conjugal relations are foreign to the scope of the section. So long as the husband maintains the wife consistent with her station in life, she cannot maintain a petition under S.488 Cr. PC. In the above-quoted Nagpur decision the learned Judge even went to the extent of observing that even impotency is not a ground for claiming separate maintenance. In the circumstances, I am not prepared to say that cessation from marital duties will amount to cruelty so as to justify separate living by the wife, and claim maintenance.