EDAMMA Vs. HUSSAINAPPA

JUDGEMENT

(1.) This revision arises out of the reference made by the Sessions Judge, Mahboobnagar, dated 13/09/1963 made in Crl. Revision Petition No. 15 of for setting aside the order of the learned Magistrate of Alampur in M. C. 5/63 on his file. That was a petition by wife under S. 488, Cr. P. C. for maintenance of herself and her minor son aged about 4 years with the allegation that the husband had ill-treated her and was refusing to maintain her and her child. It was stated by the wife that marriage had taken place about 15 years prior to the application and that she had been living with the husband all these years, but later he had driven her away and had not been maintaining her. with the result that she had taken shelter with her parents at Budhipad. The plea of the husband was that though there was a marriage, it was never consummated and the petitioner had ceased to be his wife as there was a divorce between them effected by the elders of the village. He also attributed unchastity to the wife and denied paternity of the child. It was urged on his behalf that having regard to the divorce and the unchastity to the wife and denied paternity of the child. It was urged on his behalf that having regard to the divorce and the unchastity of the wife she was not entitled to any maintenance.

(2.) The learned Magistrate on a consideration of the evidence adduced came to the conclusion that the custom of divorce pleaded by the husband in the community to which he belongs, viz., Koravas was not satisfactorily proved. He also of the view that under S. 29 of the Hindu Marriage Act, the of divorce cannot be upheld on the basis of custom. On the other issues he held that the allegations against the chastity of the wife were unfounded and in that view, directed the husband to pay a sum of Rs. 20 per month by way of maintenance to the wife and child.

(3.) The husband went in revision to the learned Sessions Judge, Mahabubnagar in Crl. Revn. Petition No. 15/63. The wife was unrepresented before the learned Judge. On a consideration of the evidence and the arguments advanced the learned Judge held that the opinion of the Magistrate that divorce on the basis of custom could not be held valid in view of the provisions of Hindu Marriage Act is not according to law. Even otherwise, he held that there was divorce between the parties. In that view, he directed that reference should be made to the High Court under S. 438, Cr. P. C. for setting aside the order of the Magistrate.