BENNY ALIAS JOSEPH Vs. ELSY ALIAS ELSAMMA ABRAHAM

JUDGEMENT

(1.) THIS revision petition is directed against an order directing payment of maintenance under Section 125 Cr. P. C. at the rate of rs. 400/-, Rs. 200/- and Rs. 300/- p. m. respectively to the claimants, admittedly the wife and two minor children of the petitioner.

(2.) MARRIAGE, paternity and separate residence are all admitted. There is no contention that the petitioner is willing to maintain the wife on condition that she lives with him. In fact he made an allegation that the claimant wife is not having a proper state of mental health. On that ground, in the counter statement, he asserted that he was proposing to move for divorce. Belatedly when the matter came up for trial, during the course of cross examination of the claimant wife, an offer was made to maintain her on condition that she lives with him. The wife contended that she was not prepared to resume cohabitation. She urged matrimonial cruelty as the reason for not resuming cohabitation.

(3.) WHAT is the grievance? Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned direction for payment of maintenance, the learned counsel for the petitioner submits that the Family court went wrong in coming to the conclusion that the claimant wife is entitled for separate maintenance. Second proviso to Section 125 (3) stipulates the law on the aspect. I extract the second proviso to section 125 (3): Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.