GOPALA PILLAI Vs. PADMINI AMMA

JUDGEMENT

(1.) The petitioner is the respondent in a proceedings for maintenance filed by the respondent. The petitioner married the respondent on 16-9-62. A child was born to them in the wedlock. Alter the birth of the child, the respondent filed M C. 15 of 1967 alleging that the petitioner was neglecting to maintain her and the child. By the time the above petition came up for disposal, H.M.A. 18 of 1967 had been filed by the petitioner against the respondent for restitution of conjugal rights, in the Sub Court, Trivandrum. The plea put forward by the respondent was that the petitioner had married a woman by name, Omana and was living with her. The Additional First Class Magistrate, who disposed of M.C 15 of 1967 observed:

(2.) S.125 so far as it has application to the instant case reads:

(3.) The contention of the petitioner is as follows: The respondent was refused maintenance in M.C. 15 of 1967. She did not comply with the order for restitution of conjugal rights. In view of the order for restitution of conjugal rights, she would not have been granted maintenance if she bad made a motion thereof during the subsistence of marriage A woman who has been divorced by her husband is not entitled to a higher right to maintenance than what she had when the marriage was in force. Therefore, the courts below acted in excess of their jurisdiction in ordering maintenance. An offer was made during the cross examination of the respondent that the petitioner was willing to maintain in case she was prepared to live with him. I he respondent was not prepared to do so. Hence there was no justification in awarding maintenance to the respondent.