MAMMAD KUNHI Vs. RUKHIYA

JUDGEMENT

(1.) The petitioner married the respondent Rukhiya in the year 1971 and they lived together thereafter as husband and wife. After living at the husband's place for some time, the wife left for her tarward house where her Karanavan one Moidu was also living. It appears that for some period during that time the petitioner also lived in that house with his wife In or about 1974 there seems to have arisen some misunderstanding between the petitioner and the Karanavan of the respondent. According to the petitioner, that concerned the failure of the Karanavan to make available a house specifically put up for the petitioner and his wife partly with funds advanced by the petitioner. It is further his case that due to the unpleasantness that arose on this account the petitioner could not continue to stay with his wife at the tarwad house and so he left it. It was then that a notice was issued to him on behalf of his wife claiming maintenance for her as well as a child who had been born in the marriage. The petitioner replied to it by Ext. P1 dated 11-10-74. In that he mentioned the circumstances under which he had to cease living with the respondent at her tarwad house and he further mentioned therein that he desired to live a proper married life if that was possible. He also mentioned in his reply that it was only a month earlier that he ceased to live with the respondent and for her expenses of that month he had sent a money order. He expressed his desire that proceedings contemplated by the notice must be avoided in the interest of the parties. Nevertheless the petition for maintenance was filed by the wife. This was contested by the husband. The contest survives here only regarding the maintenance allowed to the wife and not that awarded to the child. He 'refuted the liability to maintain his wife because, according to him, his wife, whom he wanted to take to his house so that she may live with him, was refusing to comply with his request to go over to his house. The learned trial Magistrate who enquired into this question found that on the evidence of the petitioner and the counter petitioner it had to be found that the relationship between the husband and the Karanavan of the wife was strained, and in the circumstances it may hot be possible for the respondent to reside with the wife in her house. He further found that there was no reasonable ground for the wife to refuse to live with the husband. In this view maintenance was denied to her. It was against this that the wife took the matter in revision before the Sessions Judge, Tellicherry. The learned Judge found that the offer to maintain the wife in his house was made by the husband only in answer to the petition, that it was belated and hence it was not bona fide. In this view he directed the husband to pay a sum of Rs. 70/- per mensem to the wife besides a sum of Rs. 50/- directed to be paid on account of the child. The petitioner has resorted to this court complaining that the learned Sessions Judge ought not have held in revision that the petitioner was liable to pay maintenance to his wife despite his offer to maintain her in his house. It is particularly urged in the revision before this court that the wife has not indicated at any time any ground which may justify her conduct in living away from her husband, and in the absence of a finding on the availability of such a ground the learned Sessions Judge was not right in directing payment of maintenance by the petitioner.

(2.) The facts of the case as it has come out in evidence indicate beyond any doubt that there is no case of misconduct on the part of the husband in regard to his wife. It is not as if the husband was inconsiderate towards his wife or that living with him at his house would in any way be harmful to the mind or body of the petitioner. There is no case of ill treatment at any time by the husband or want of affection which a wife could normally expect from her husband. On the other hand it appears that the wife wanted to live in her own tarwad house and wanted to have the husband also there. According to her she lived only for a few days with her husband in his house and thereafter went to her tarwad house. It was not suggested that this was for any specific reason. It was only a matter of her personal preference or choice. Evidently the husband was accommodating enough to adjust himself to residence with his wife at her tarwad house. Strained relationship between the petitioner and the Karanavan developed as a consequence of which he moved out of the house. This was followed by a notice calling upon this petitioner to pay maintenance for the wife and the child. The petitioner refuted the liability and indicated the circumstances under which he had to move out of the house where he had been living with his wife. Though this reply has been received on account of the wife she has evidently not come to know of the contents of the reply. Probably it was not brought to her notice by the Karanavan. That is what she swears. She has come to court claiming maintenance. The petitioner seeks to meet the claim by the plea that he was prepared to take her with him and therefore she should live with him. The Sessions Judge took the view that the offer to maintain the wife at the husband's home was belated and therefore not bona fide. This, it is said, is not in accordance with law. That is what calls for consideration in this revision.

(3.) S.125(1) of the Code of Criminal Procedure confers the right to any wife unable to maintain herself to claim maintenance from her husband if he has sufficient means but neglects or refuses to maintain her. It is not as if every wife is entitled to maintenance irrespective of other factors. It is not every indigent wife that is so entitled to maintenance. Apart from showing that the husband has sufficient means it must further be shown that he neglects or refuses to maintain his wife. If a person is willing to maintain his wife in accordance with his civil obligation, there is neither neglect nor refusal. Therefore the question whether the wife is justified in refusing to live with the husband is not a question independent of S.125(1) of the Code of Criminal Procedure Even in deciding the question of liability of the husband to maintain his wife the court would be called upon to decide one way or other as to whether there was neglect or refusal on his part. If a person is bound only to maintain his wife properly in his own home and that he is ready to do but the wife refuses to live there with him it cannot be said that there is neglect to maintain the wife or there is refusal. Normally a husband who provides a congenial matrimonial home to his wife is under no further obligation to pay maintenance if she, notwithstanding that he has a home where she could live a pleasant life discharging her obligations as wife wants to be in her own home, where she expects the husband to join her company. I am attempting to indicate that where a wife is unreasonably refusing to live with her husband who is prepared to provide her with a matrimonial home that is a matter which must go into reckoning in passing an order under S.125(1).