K. SAVITHRIAMMAL Vs. K.K. BALAGURUVAPPA

JUDGEMENT

(1.) THE unsuccessful wife in M.C. No. 22 of 1987 on the file of the III Metropolitan Magistrate, G.T. Madras, is the Petitioner. She filed before the enquiring Magistrate a petition under Section 125 of the Crl. P C. on 1 -4 -1987 claiming maintenance from, her husband, the Respondent herein. The averments in the petition were that she married the Respondent in 1946, that she and her husband lived together till December 1958, at No. 10, Ramanuja Koodam Street, Washermanpet, that two children were born out of the marriage, that from 1959 the Respondent started living away from her and that in O P. No. 342 of 1960 she filed a petition for divorce from the Respondent. According to her, she was duped by the Respondent and divorce order was obtained. Even though the City Civil Court awarded maintenance to her, the Respondent did not care to pay the maintenance amount ordered. Therefore, it was her case that the Respondent has neglected her. She has also stated in the petition that she has no means and the Respondent was a business man. A sum of Rs. 1,000 per month as maintenance was prayed for.

(2.) IN the counter filed before the enquiring Magistrate, the Respondent admitted the marriage and the birth of two children. He has stated that it was the Petitioner who filed O P. No. 342 of l960 and obtained an ex parte order of divorce against him. He has also stated that in the same petition she had prayed for maintenance which was also awarded. He admitted that from 1959, he and the Petitioner were living separately. According to him, they have not even met after 1959 He has denied that the divorce order was passed because of the deceit practised by him on the Petitioner. He has also stated that the Petitioner filed O.S. No. 7281 of 1983 on the file of the City Civil Court, to set aside the order in O P. No. 342 of 1960 The said suit was dismissed and the appeal filed by the Petitioner in A.S. No. 119 of 1987, also faced the same fate. Later, the Petitioner filed O.S. No. 7870 of 1983 on the file of the City Civil Court, against the Respondent praying for maintenance. Due to her negligence, the suit was dismissed for default. The Petitioner filed a petition to restore the suit on file, and it has been ordered. Now, the proceedings in O.S. No. 7870 of 1983. for maintenance against the Respondent, claimed by the Petitioner, are pending disposal. The maintenance ordered by the Civil Court earlier was paid to the Petitioner. Now, the Petitioner is living with her son who is maintaining and taking care of her. The Petitioner is living in the ancestral house of the Respondent along with her son and daughter -in -law. The Petitioner is leading a comfortable life, whereas the Respondent does not have sufficient means and is being taken care of by his second wife. The petition claiming maintenance has to be dismissed.

(3.) THE enquiring Magistrate was not prepared to accept the case of the Petitioner and found that the parties were living away from each other from 1959 and a divorce at the instance of the wife had been obtained as early as 13 -10 -1930. The enquiring Magistrate also relied on the judgment of this Court in J Sampathkumar v. Subashini, 1985 L.W. (Cri.) 224. wherein this Court has observed that for getting an order of maintenance under Section 125, Crl. P.C., one should show that the person bound to maintain, neglected or refused to maintain. It was not shown on the facts of that case that the wife asked for any maintenance pendente lite during the matrimonial proceedings. Even prior to that, as in this case, the parties were living separately. It was observed that it was the duty of the wife to ask the matrimonial court itself to grant maintenance along with the decree for divorce and avail of the remedy under Section 25 of the Hindu Marriage Act, if thought fit, even subsequently.