AJITSING HAKAMSING Vs. LABHKAUR

JUDGEMENT

(1.) This is a revision petition filed by the husband the opponent in Miscellaneous Application No. 9 of 1969 against his wife the petitioner in that case against the order passed by the learned City Magistrate 5 Court Ahmedabad. directing him to pay Rs. 100/per month with effect from 29-1-1969 the date of application towards her maintenance and to pay Rs. 100/by way of costs to the wife. It was a proceeding taken out by the wife against her husband for maintenance under sec. 488 of the Criminal Procedure Code on the ground that she was the legally wedded wife and her husband had neglected and/or refused to maintain her.

(2.) The marriage between the parties took place sometime in the year 1942 A. D. as mentioned in the agreement Ex. 4 dated 16-1-1965. During that wed-lock one son named Sukhdev was born who has now become major. As the husband was illtreating the wife and further more he had kept a mistress named Pushpa Lilaram she had started residing separately under an agreement whereby the husband had agreed to pay Rs. 100/per month to her by way of maintenance. That agreement was executed on a stamp paper and the husband had agreed to send Rs. 100/every month by money-order. He did it for some time and she accordingly stayed separately. From the month of August 1968 he did not send that amount and hence a notice Ex. 5 was given by her to him through her Advocate for demanding the arrears. In reply to it he gave an evasive answer and stated that as she was staying separately from him since the year 1964 A. D. she had ceased to be his wife. There had been no divorce and the marriage was subsisting. As this husband had kept a mistress named Pushpa he does not want to keep her and does not want to maintain her. He has good property and has got a factory car etc. and earns Rs. 3 0 per month. Rs. 250/per month would be required for maintaining herself in these days of high cost of living and to live a life which she had lived uptil now. She therefore claims maintenance on that basis.

(3.) The significant fact to be borne in mind from the reply Ex. 2 given to this application by the present petitioner (husband) is that he has not taken up a contention that such an application cannot be entertained tin the Criminal Court in view of the provisions of sub-sec. (4) of sec. 488 of the Criminal Procedure Code (which will be hereinafter referred to as the Code) as the parties had agreed to live separately by mutual consent and they were so living. on the contrary he asserted that there was no free consent given by him to pay any such maintenance amount of Rs. 100/per month. His wife was in illicit connection with one Natwarlal serving in the Municipal Corporation and her conduct was very doubtful. In those circumstances under coercion and pressure his wifes relations had taken his signature on one paper. He had raised a protest in that behalf. He had not refused to maintain his wife and had not neglected to maintain her. He had not illtreated her He had stopped his confectionary business wherein Bai Pushpa was his partnerHe had no other relations with her. He is without any business and is unemployed. The application should therefore be rejected.