JAMBAPURAM SUBBAMA Vs. JAMBAPURAM VENKATA REDDI

JUDGEMENT

(1.) THE petitioner, Subbamma, had filed a petition, on 9th October 1947, in the lower Court, under Section 488, Criminal Procedure Code, against her husband, the respondent claiming maintenance for herself, at Rs. 100 a month, and for Pullanna, her son aged 17 on the date of the petition, at Rs. 50 a month. She claimed to be the third wife of the respondent and to have married him some twenty years back. She delivered two children who died soon after birth. So, the respondent married P.W. 2's daughter as his fourth wife. This fourth wife delivered a son, Pedda Raja Reddi, and died. Thereafter the petitioner delivered her son Pulla Reddi alias Pullanna. Misunderstandings between her and the respondent arose when the respondent celebrated the marriage of his brother's daughter, Sivamma, and wanted to give her two seers of gold and Rs. 2,000 in cash two which she strongly objected and even sent round notices to his debtors not to pay their dues to him. So, the respondent began beating her, and his mother and Sivamma also joined in this ill -treatment. She and her son were not given proper food and were finally beaten and driven out of the house on 24th September 1947. She filed a criminal complaint against him regarding that. She alleged that she and her son were doing coolie and king out their livelihood. She added that the respondent was worth a lakh of rupees but had concealed his gold and cash and valuables in order to defeat her rights for maintenance and her son's rights for partition and maintenance. P. W. 2, the father of the respondent's fourth wife, supported the petitioner's story regarding Pullanna being the respondent's son and the respondent having a lakh of rupees and the petitioner's leaving the respondent's house about September 1947. So did P. W 5, the respondent's sister's husband and P. Ws. 3 and 4, big ryots of the village.

(2.) THE respondent admitted the petitioner's marriage to him, but said that she left him some three years after the marriage, and that he never beat or ill -treated her or refused proper food to her. He was supported by a washerman and some other witnesses examined on his behalf. He alleged that he was not the father of Pullanna, and that Pullanna was born to the petitioner by some paramour of hers. So he denied his liability to maintain the petitioner or Pullanna. The lower Court found that the allegation regarding the beating; starvation and physical cruelty by the respondent had not been proved, and, so, dismissed the petition, though it found the marriage to be true. It considered, rather curiously and, of course, erroneously, that the conclusive' presumption, under Section 112, Evidence Act, in favour of Pullanna's being the son of the respondent, was one which only a civil Court trying a maintenance suit should draw and not a criminal Court bearing a petition under Section 488, Criminal P C. So it dismissed the petition. Hence this revision petition.

(3.) THE learned counsel for the petitioner urged that there was "legal cruelty" in this case sufficient to entitle the petitioner to live apart from her husband, the respondent, and yet claim maintenance, since the respondent had attributed immorality to her deliberately and falsely. He urged also that, under Section 112, Evidence Act, Pullanna must be presumed to be the respondent's son and given the maintenance due to him under Section 488, Criminal Procedure Code, as a "child." I agree. Deliberate attribution of immorality falsely to a wife by a husband has been held in this country, more than 2000 years ago, by Chanakya the Prime Minister of the Mauryas, to be "legal cruelty" sufficient to entitle the wife to live separately from her husband and yet claim maintenance, though Chanakya was of opinion that a slight beating of the wife or cessation of conjugal relations with her during long periods of Deeksha (religious vows) would not amount to "legal cruelty" sufficient to entitle her to live separately and claim maintenance. The respondent has stated in the lower Court that the petitioner's son Pullanna, born to her while she still remained his wife, was not born to him, though P.Ws. 1 to 5 had sworn that he was born to him. He did not also prove the impossibility of his access to her at the time when this son could have been conceived. The son Pullanna would, therefore, be presumed to be the respondent's son under Section 112, Evidence Act, and, so, prima facie, the respondent must be taken to have deliberately attributed immorality falsely to his wife, the petitioner, and that too in a very pointed form by alleging that the immorality bore fruit also, in the shape of this son. Hence, subject to proof of impossibility of access etc., in a maintenance suit if and when instituted in a civil Court, the petitioner will be entitled to live separately and claim maintenance from the respondent for herself and her son till he became 18. The presumption under Section 112, Evidence Act should be drawn by all Courts, civil criminal or revenue, governed by the Indian Evidence Act. The respondent did not offer in the lower Court or here to maintain the petitioner or Pullanna. His case was that he never maintained them for twenty years past and was not bound to maintain them in future also. The respondent's counsel stated that the respondent proposed to prove the petitioner's immorality, his non -access etc., in the civil Court, in due course, if and when she filed a suit there for claiming her full right of maintenance, at Rs. 100 a month for herself and Rs. 50 for her son, etc. He said that the respondent had also raised these contentions in a partition suit filed already by the petitioner on behalf of Pullanna as his guardian.