PARAMESWARAN PILLAI Vs. RUGMINI AMMA

JUDGEMENT

(1.) The Counter Petitioner in the Court below is the Revision Petitioner. The petition is one filed under S. 488 of the Code of Criminal Procedure. The 1st petitioner in the Court below is the wife and the second petitioner the daughter of the Counter Petitioner. The husband and wife are living separate from 8.1.1124. The wife filed a criminal complaint on 10.1.1124 alleging that the husband assaulted her. That case is still pending. It was alleged in the petition that the husband was guilty of habitual cruelty and that he deserted the wife and child. Maintenance was claimed at the rate of Rs. 35/- per mensem for the wife and Rs. 15/- for the child. According to the petitioner the counter petitioner is worth Rs. 15,000/-, and the annual income from his properties is Rs. 150/- and he gets a monthly salary of Rs. 40/-. The counter petitioner denied the allegations in the petition and contended that the petitioner refused to live with him for no justifiable reason and that he was prepared to maintain her and the child according to his means if they would go and live with him. He also contended that he had only a puduval property which yielded little income and that his monthly salary was only Rs. 20/-.

(2.) In disposing of the petition the Court below proceeded on the basis that the dispute between the parties related only to the quantum of maintenance. The learned Magistrate made a local inspection of the property belonging to the counter petitioner and came to the conclusion that Rs. 300 per year would be the yield from the property. On this basis the learned Magistrate awarded Rs. 15/- a month as maintenance for both the petitioners together.

(3.) One of the grounds raised in the revision petition is that the Court below went wrong in not recording a finding on the question whether there was sufficient reason for the wife to refuse to live with her husband. The revision petitioner had expressed his willingness in the Court below to maintain his wife f she would go and live with him. According to him there was no justifiable reason for her refusing to live with him. The proviso to S.488, sub-s. (3) says that if the husband offers to maintain his wife on condition of her living with him and she refuses to live with him, the Magistrate may consider the grounds of refusal stated by her and award maintenance under the section notwithstanding such offer if he is satisfied that there is just ground for awarding such maintenance. Sub-s. (4) provides that no wife shall be entitled to receive an allowance from her husband under the section if without any sufficient reason she refuses to live with him. In 1951 KLT 655 this Court held that if the wife is not living with her husband and if the husband offers to maintain her if she would live with him, it is for the wife to prove that there is sufficient reason for her refusal to live with the husband. The learned Magistrate was bound to go into the question whether there was sufficient reason for the 1st petitioner refusing to live with the counter petitioner. It was submitted on behalf of the counter petitioner that he had not given up his contention in the court below that his wife refused to live with him without any justifiable reason and that she was therefore not entitled to separate maintenance.