SATHEESAN Vs. MONY

JUDGEMENT

(1.) I am prefacing this order with these remarks for the reason that the question I am called upon to consider here is whether the learned Additional Sessions Judge, Ernakulam, was, on the facts of the case, acting properly in setting aside the decision of the Chief Judicial Magistrate, ernakulam, and remitting the case back to that court, in proceedings commenced under S. 125 of the code for maintenance by a wife against her husband. The husband complained that the wife was living away from him without his consent and despite his attempts to get her over to his home. He offered to maintain her in his home in case she was willing to live with him. She had no legitimate excuse for refusing to live with him. Of course, her case was that he was living with his parents, his brother and sister also and that she was willing to live with him if he would take up separate residence. No wife could normally insist that the husband must live away from his parents if she was to give him her conjugal company. May be, cases may arise where a wife will be justified in such a plea. But then it must be shown that it will not be possible for her to live a normal life in the husband's home because of the surroundings and circumstances. S. 125 (1) (d) of the code casts an obligation on a person to maintain his father and mother, unable to maintain themselves. This obligation indicates that the framers of the code did not consider it unusual to have one's parents in one's home. In fact in the normal course they must find themselves welcome in the house of their sons. If that be the case, a woman married into the family cannot insist upon driving out the parents from the husband's house as a condition precedent for living with her husband. Married life is a matter of innumerable adjustments quite often not to one's liking. Therefore, as rightly found by the trial Magistrate the refusal to live with the husband disentitled the wife to any separate maintenance under S. 125 (1) of the code. That was rightly denied to her. She filed a revision against that order before the Additional Sessions Judge. The learned Additional Sessions judge does not find that the order passed by the Chief Judicial Magistrate was in any way wrong. He could not, on the material hold that it was illegal or improper. In fact there was no attempt to find so. On the other hand, he took note of a further development. Evidently the wife became wiser during the pendency of this revision proceedings. Before the Sessions Court she offered, for the first time, to live with her husband without insisting upon the husband taking a separate home. She had been living away for some time, assisting her mother in the running of a hotel. According to the petitioner-husband she is iii lucrative business, for, it is said that she and her mother are well off in the hotel business and financially the wife is better off in the hotel business than the petitioner who is only a toddy tapper. Whatever that be. this offer to live with the husband made after the decision of the trial Magistrate was not acceptable to the husband and therefore he did not concede to her request. Nevertheless the learned Additional Sessions Judge directed that the question be considered again. The learned Sessions Judge wanted the Magistrate to look into the question why the wife had offered now and why the husband who was all along willing to take her was refusing to take her to his home. The learned judge set aside the order of the learned Chief Judicial Magistrate and sent the matter back to take necessary evidence on the "new question" and dispose of the matter in the light of the decision thereon. It is this order that is challenged in this revision petition against the order of the learned additional Sessions Judge. e. As I indicated earlier, within the scope for exercise of the revisional powers, judged in the background of the requirement of S. e97 of the code no question of considering any offer made by the wife as the revision petitioner before the learned Sessions Judge would arise before him. That is not a circumstance contemplated in S e97 as justifying exercise of revisional power. May be a wife who has been denied maintenance because of her attitude in the matter of willingness to live with her husband may change her mind because of an adverse decision She may be willing then to live with her husband. If the husband who is told by his wife then that she has changed her mind refuses to accept her and look after her she may have a claim for maintenance if her offer is genuine but that would be a different cause of action for a fresh action and possibly if she is entitled to relief under those circumstances a resort may have to be made again to S. 125 (1) of the code. But that is not the case here. The same proceedings are sought to be reopened at the instance of the revisional authority and if his function is limited to interference only on the existence of certain circumstances namely those enumerated in S. e97 of the code in so far as such circumstances did not exist in this case the revisional jurisdiction ought not to have been invoked. For that reason I have to vacate the order passed by the learned Additional sessions Judge. I do so. That means the order of the Chief Judicial Magistrate is restored. Disposed of a above. Allowed. . .