NAGAPPAN Vs. VIJAYA VISALAKSHI

JUDGEMENT

(1.) THIS revision petition is directed against the order of maintenance. Maintenance was claimed by the wife on the ground that she was neglected by her husband, revision petitioner herein. She claimed a maintenance to the tune of Rs. 700/ -. The trial Court after hearing both the parties has granted maintenance to the tune of Rs. 250/ - p.m. Against this order, the husband has come by way of this revision petition.

(2.) THE main grounds urged by the learned counsel for the revision petitioner are that the wife suffered from mental derangement, that she has been under treatment in her parent's house and that she has come out with an allegation of bigami in respect of which she has even filed a complaint which complaint has been ultimately dismissed, the case ending with the acquittal of the husband. It was also contended by the learned counsel for the revision petitioner that since the respondent -wife is not prepared to go and live with her husband, who is working in Bergampur, she is not entitled to any maintenance. The order for maintenance under Section 125 Code of Criminal Procedure is a temporary one and the proceeding being a summary one the order is granted to provide only an emergent relief to persons in need. The permanent rights of the parties have to be decided by the appropriate Court, especially after the advent of the Hindu Adoptions and Maintenance Act and more recently the Family Courts Act, 1984. A person coming before the Magistrate for an order of maintenance should plead that she is neglected and that the party bound to maintain refuses to do so. There has been such an allegation by the wife/petitioner before the Magistrate. The husband in such a case can resist the petition for maintenance in offering to maintain his wire on condition of her living with him. When such an offer is made, it is still open to the wife to refuse it in which case she will have to substantiate her grounds of refusal. In the present case, though the wife has made allegations of neglect, the husband has not in his counter made any offer to take her back and to maintain her, on her accepting to live with him. The learned counsel for the revision petitioner herein has also admitted that no such offer was made even in the course of the chief examination of the husband. But he would point out that the wife, when she was cross -examined, has categorically stated that she would not go to Bergampur if the husband wanted her to do so. This answer to an hypothetical question cannot be considered as a refusal by the wife to go and live with the husband. There will be refusal as such only when a firm offer specifying all the conditions of the offer has been previously made. In the absence of an offer by the husband, and answer by the wife to a question which would be then irrelevant has no value whatsoever. It would be idle for the revision petitioner to harp upon to refuse maintenance. So, I do not find anything wrong in the Magistrate granting maintenance to the wife.

(3.) IT was then contended by the learned counsel for the revision petitioner that the amount of maintenance granted was high. But, as per his own showing, his monthly salary is Rs. 1,200/ - p.m I find that the Magistrate has granted maintenance at a rate lower than what could have been granted in such a case and that there has been no revision petition filed by the wife for enhancement. So, I do not see any reason whatsoever for reducing the maintenance amount. It is open to the husband, who complains of the inability of his wife to lead a normal matrimonial life, to seek remedy before the matrimonial Court and the parties can obtain permanent order regarding maintenance, if any in that Court.