BALAKRISHNAN NAIR Vs. PADMINI AMMA

JUDGEMENT

(1.) THE husband has come up in revision against the order of maintenance passed by the Sub Divisional Magistrate, Kunnamkulam, under s. 488 Cr. P. C. THE learned Magistrate has awarded a monthly maintenance of Rs. 30/-to the 1st Respondent-wife, and Rs. 10/- to the 2nd respondent minor son. Marriage and paternity are admitted and the maintenance awarded to the child is not challenged. THE attack is only against the maintenance ordered to be paid to the wife. THE attack is that the wife is not entitled to separate maintenance as she is unwilling to stay with husband. THE couple were residing in the husband's family-house where his two sisters and their children are also residing. Both the sisters were married and divorced by their husbands. THE wife's case is that she was being prosecuted by these sisters and life became impossible for her in the family-house. THE husband has only a fractional undivided interest in the house and according to the wife, the sisters were asking her and her husband every time to find some other place of residence for them. THEir cruelties towards the wife sometimes went to the extent of beating her and putting her to mental and bodily pain. THE situation became so intolerable that the husband was compelled to take the wife to her house and leave her there until he was able to find a convenient abode for her. THE husband is not prepared to endorse this case of the wife. According to him she left his bouse without his knowledge or consent and refused to return even though he had personally gone to her and demanded her return. THE learned magistrate on a consideration of the various aspects touching the question has come to the conclusion that the wife has succeeded in making out a case for separate maintenance. On a reappraisal of the evidence and circumstances available, I think the view of the learned Magistrate is correct.

(2.) THE revision-petitioner-husband is a post-man employed in the Trichur Post Office. Every morning at about 6 he would leave for his place of business and return home by about 7 p. m. During this interval, his wife will be at home, at the mercy of the two sisters and the children of a deceased sister. According to her she would be put to all sorts of cruelties by them at this time when her husband is away. THE revision petitioner had not the courage to deny this allegation, before court. To a direct question as to whether the wife would be able to get on in the house in the teeth of the opposition of his sisters, he was not able to give a definite answer. He said that it is not possible for him to say whether in such a situation she would be able to continue her residence in the house. He is himself helpless as is evident from his own statement before court. On the death of his mother he got a share in the properties left by the mother which was sold by him for Rs. 600/ -. In the present house he has only a negligible interest, i. e. a share equivalent to what his little nephew would get. THE wife has deposed that his sisters used to call him names and behave most cruelly and discourteously to him but with all that be is prepared to continue his residence there and he is definite that he would support the wife only if she comes and stays with him in the family-house. After leaving the wife in her house he never went and invited her to come and stay with him; but he would plead otherwise. To prove this aspect of the case, some witnesses were cited by him; but none of them was examined. THE wife, on the other hand, is prepared to go and stay with him anywhere except the family house which is under the control and management of his sisters. It is not correct or fair to say that the wife should go and stay with the husband putting up with the unpleasantness and cruelties emanating from the husband's people. THE wife's difficulties have also to be taken into consideration and appreciated in the circumstances in which she is placed. To think that she is a non-entity having no voice in such matters is to go against what normally happens in a civilized society Ramaswamy, J. , of the Madras High court in Ponnambalam v. Saraswathi (AIR. 1957 Madras 693), on similar facts observed: