NOOKALA APPAYYAMMA Vs. NOOKALA SUBBA RAO

JUDGEMENT

(1.) THE petitioner was awarded separate maintenance in 1924. Subsequently that order was cancelled on the application of her husband, the respondent, that he was willing to take her back ; but the petitioner refused to live with him and consequently the Additional First Class Magistrate, Cocanada, has cancelled the order granting maintenance. The first objection taken is that the original order having been passed by the Sub -Divisional Magistrate, Cocanada, the Additional First Class Magistrate who cancelled it in 1945 could not do so as there was a Magistrate bearing the designation ' Sub -Divisional Magistrate, Cocanada.' It is contended that the Additional First Class Magistrate was not the successor of the Sub -Divisional Magistrate, but it would appear that the Additional First Class Magistrate has been invested with powers to entertain applications under Section 488, Criminal Procedure Code, and that the Sub -Divisional Magistrate, Cocanada, has no jurisdiction to try maintenance cases. It would also appear that the application for cancellation of the order granting maintenance was presented to the Sub -Divisional Magistrate and that as he had no jurisdiction to entertain it, he forwarded it to the Court having jurisdiction, viz., the Court of the Additional First Class Magistrate, Cocanada. The objection is overruled.

(2.) ON the merits there can be no doubt that all that happened before 1924 could not be pleaded as a valid defence in 1945. So long as the husband and wife agreed to live separately it was a different matter. It is always open to the husband to demand the wife's company and to insist that she should come and live with him. The only plea upon which she can resist the demand is by showing that the husband was subjecting her to a course of cruelty. There is no such plea put forward except that had transpired prior to 1924. I agree with the Additional First Class Magistrate that the petitioner has no right to separate maintenance in these circumstances.