NARENDRA PRAKASH TYAGI Vs. KAMLESH KUMARI

JUDGEMENT

(1.) REVISION No. 893 of 1975 has been filed by Narendra Prasad Tyagi whereas REVISION No. 1090 of 1975 has been filed by his wife Smt. Kamlesh Kumari Tyagi. These two revisions are directed against the judgment of the Magistrate 1st Class, Allahabad dated 27th January, 1975. The facts briefly stated are this Smt. Kamlesh Kumari Tyagi filed an application under Section 488 Cr.P.C., for the grant of maintenance at the rate of Rs. 200/- per month to her against Narendra Prasad Tyagi on the allegations that Narendra Prasad Tyagi treated her cruelly that in March, 1973, he turned her out of his house and sent her to her parents in Subedarganj. Since then he has neglected her and had not maintained her and refused to maintain her, hence she was entitled to get maintenance from him. According to the estimate given by her in the application for maintenance Narendra Prasad Tyagi was earning Rs. 800/- per month from his salary and tuitions. The application was resisted by w Narendra Prasad Tyagi and the allegations that he had treated Smt. Kamlesh Kumari Tyagi cruelly and that he was guilty of having neglected her, were denied. He further denied that he beat her. He further asserted that he went several times to take her but she refused to live with him on no ground, therefore, the application filed by her for the grant of maintenance was not maintainable. He also asserted that Smt. Kamlesh Kumari Tyagi was a woman of loose morale and that on account of that she was not entitled to get maintenance. The trial court held "In this case there is oath against oath and the applicant has failed in proving her own case of the alleged ill treatment, neglect or refusal to maintain her on the part of her husband. The application is, therefore, rejected." 4. Aggrieved by the judgment of the Magistrate, Smt. Kamlesh Kumari Tyagi went in revision. The revision was allowed by the impugned order dated 15th July, 1975 and she was awarded maintenance of Rs. 50/- per month from the date of the application in the lower court. 5. Feeling aggrieved by this order Narendra Prasad Tyagi has filed REVISION No. 893 of 1975. As according to Smt. Kamlesh Kumari Tyagi the maintenance granted to her was insufficient, she also came to this Court in revision which has been numbered as REVISION No. 1090 of 1975. Both these cases were connected, hence are being decided by a common judgment. 6. Sri J. N. Chatterji, learned counsel for Narendra Prasad Tyagi urged that as the allegations made by Smt. Kamlesh Kumari Tyagi in the application under Section 488 Cr.P.C. were not found to have been established, the learned Sessions Judge was not justified in creating a new case for Smt. Kamlesh Kumari Tyagi and granting maintenance to her. He further submitted in this regard that Smt. Kamlesh Kumari Tyagi had not alleged in the application that any allegation of adultery had been made by Narendra Prasad Tyagi against her, therefore, the learned Sessions Judge, erred in law in granting maintenance to her on the finding that as Narendra Prasad Tyagi had made allegation against her of living immoral life, therefore, she was entitled to her maintenance. It is no doubt true that Smt. Kamlesh Kumari Tyagi did not make any allegation of the nature mentioned above and filed the application on the ground that the treatment meted to her by her husband was cruel and that he had refused to maintain her,but an application under Section 488 Cr.P.C. is not to be read as a statute. She had made allegations of cruelty against her husband and that the allegations of cruelty contained within its ambit not only physical cruelty but also mental cruelty, hence it is not possible to throw her claim for maintenance merely on this technical objection of Narendra Prasad Tyagi though the application made by Smt. Kamlesh Kumari Tyagi was not founded on the allegation that Narendra Prasad Tyagi had made any allegation about her character in the past. 7. Moreover, it is not always necessary that an application under Section 488 Cr.P.C. can only be granted when an allegation made in the application is established. It is open to the Court to look into the written statement also in order to find out the real nature of the dispute between the parties and if it comes to the conclusion by reading the pleadings of both the parties that a case for grant of maintenance has been made out, it can do so. Accordingly Narendra Prasad Tyagi made the charge of adultery against Smt. Kamlesh Kumari Tyagi, the Court can take that fact into account while granting maintenance to her specially when both the parties led evidence in the trial court in respect of the same. As observed above, it appears that the allegations of cruelty made by Smt. Kamlesh Kumari Tyagi were taken by both the parties as involving a charge of adultery against Smt. Kamlesh Kumari Tyagi and it is on account of this fact that Smt. Kamlesh Kumari Tyagi filed evidence in the trial court showing that her husband had been writing letters in the past expressing that she was leading an immoral life. 8. Counsel for the applicant has next urged that Narendra Prasad Tyagi was prepared to keep Smt. Kamlesh Kumari Tyagi with him, therefore, the application made by her was liable to be rejected. As stated above, Narendra Prasad Tyagi had made allegation of adultery against her, hence she was justified in refusing to live with Naren-dra Prasad Tyagi and her application could not be rejected simply on the readiness expressed by Narendra Prasad Tyagi to keep her with him. A woman whose chastity has been doubted cannot live in peace with her husband and can justifiably claim her right to live separately and maintenance from her husband. Accordingly the submissions made by the learned counsel for the applicant cannot be accepted. The revision, therefore, filed by Narendra Prasad Tyagi is liable to be rejected. 9. It now appears to be a settled position in law that a deliberate attribution of immorality to a wife has to be construed as legal cruelty, entitling the wife to live separately and claim maintenance. Hence even if Smt. Kamlesh Kumari Tyagi was entitled to get maintenance on this ground, reference may be made in this connection to a case decided by the Madras High Court in Kandaswami Moopan v. Angam Mal(AIR 1960 Madras 348). In this case the Madras High Court held that the allegation made by the husband about unchastity of his wife could construe as legal cruelty and that by itself entitled her to live separately from him and to claim separate maintenance. 10. Coming to the revision of Smt. Kamlesh Kumari Tyagi counsel for the applicant urged that the finding of the learned Sessions Judge that Smt. Kamlesh Kumari Tyagi was also an earning member is not correct and there is nothing on the record to justify this finding. Be that as it may, under the circumstances, it appears to me that the sum of Rs. 50/- awarded by the learned Sessions Judge should meet the requirement of the applicant. Hence, no case for enhancement has been made out. 11. In the result both the revisions are dismissed. REVISIONs dismissed.