KAMADI BHAVANI Vs. KAMADI LAKSHMANASWAMY LAKSHMANA RAO

JUDGEMENT

(1.) This Criminal Revision raises an important question arising under S. 125 of Criminal Procedure Code (for short 'Cr. P. C.') as to :

(2.) The facts briefly stated, thus, are : The revision petitioner (hereinafter referred to as 'the wife') and the lst respondent (hereinafter referred to as 'the husband') got married during the year 1982. Though it was the first marriage for the wife, for the husband it was the second marriage. Through his first wife, he begot a daughter and two sons and then underwent vasectomy operation. After some time, when his first wife died, he married the petitioner. It is a confirmed finding of fact that the husband did not tell his wife before the 2nd marriage that he underwent vasectomy operation and that she cannot bear children. The wife came to know of the said fact only later as she did not find the fruits of sexual union. Then the husband revealed her that he underwent vasectomy operation even before his marriage with her and that there was no chance of her begetting any children. She counselled him to undergo recanalisation operation, but he did not heed to the same. She tried through her father, but he too failed. Then there were mediations which were also not fruitful as the husband did not budge. Misunderstandings arose. Then the wife was ill-treated by her husband as also his mother and sister. Ultimately, she was out of her matrimonial home. The Court of Magistrate before whom the maintenance claim was filed in M.C. No. 19/88 held as a finding of fact that there was a just and reasonable cause for the wife to stay apart and to claim maintenance. The defence raised by the husband that no cruelty was meted out to his wife; that she is voluntarily staying apart and that he has obtained a decree for restitution of conjugal rights which was granted ex-parte and the wife did not contest and in view of the same, the wife was not entitled to claim maintenance, was repelled. The maintenance claim was quantified at Rs. 400,/ - per month and pending decision, for some time interim maintenance at the rate of Rs. 100 / - was granted to the wife. The husband filed a revision before the court of Sessions in Crl. R. P. No. 280/92 which held that there was no just cause for the wife to stay apart and that the cruelty alleged by her was not proved holding that the misunderstanding arose resulting in strained relationship and the wife was staying apart only on the ground that she could not bear any children as her husband underwent vasectomy operation even before their marriage. It is significant to note the findings of the Court of Sessions "In all probability disputes must have arisen due to the refusal of the husband to undergo recanalisation operation and there is no prospect of begetting children through him", "It shows that PW 1 (wife) has developed dislike towards her husband and there is no reasonable and probable cause for PW-1 to refuse to join her husband. " Thus, it is clear that while allowing the revision and setting aside the order of maintenance the court of Sessions based its judgment on two grounds; namely, (1)that starving a wife of children is not a sufficient reason for staying apart and claim maintenance; and (2) that decree for restitution of conjugal rights disentitled the wife to claim maintenance.

(3.) Ms. Rohini,the learned counsel for the petitioner vehemently contends that the lst respondent has acted curelly on the petitioner and these cruel acts have been sufficiently proved and that the order of the Court of Magistrate is valid and that there is no justification for the Court of Sessions to interfere and reverse the said order. She contends that, even if the other allegations made by the petitioner are not found to be corroborated, the court of Sessions having confirmed the finding of fact that the lst respondent underwent sterilisation operation before marrying the petitioner and concealed the same from her, ought to have confirmed the maintenance order. According to Ms. Rohini, the act of the lst respondent-husband in marrying the petitioner by concealing the factum of sterilisation knowing fully well that he cannot procreate children when the petitioner married the lst respondent with dominent purpose of bearing children, amounted to cruelty in all respects - physical mental and legal and as such, the same was a just cause and a sufficient reason for the petitioner to stay apart and claim maintenance. She cited decisions in support of her contention. Mr. Venkata Ramesh, the learned counsel appearing for the lst respondent argues otherwise and submits that the lst respondent as the husband has got no other obligation under S. 125, Cr. P.C. other than providing food, clothing and shelter to the petitioner and no other factor can be taken into consideration and more so, an issue of barrenness like the instant one. He has also cited decisions in support of his contentions.