YENAMALA NARAYANA Vs. YENAMALA KONDARAH

JUDGEMENT

(1.) The two petitioners herein are the wife an and minor daughter respectively of the respondent. Holding that the petitioners were entitled to live separately from the respondent in so far as the respondent has been guilty of legal cruelty by falsely attributing unchastity to the first petitioner, the judicial First Class Magistrate. Kandukur awarded maintenance of Rs. 40/- to the first petitioner and Rs. 20/- to the second petitioner on the ground that the respondent has; neglected and refused to maintain fhe petitioners. On a revision filed by the respondent against the order granting maintenance, the learned Sessions Judge set aside the order of maintenance holding that "the first respondent (the first petitioner herein) has been guilty of more legal cruelty to the petitioner (the respondent herein) rather than the petitioner to her in as much as the case of the first respondent that her husband married a second time is proved to be false by her own evidence. In the circumstances the attribution of immorality to the first respondent by the petitioner In his counter and registered notice cannot be taken as amounting to legal cruelty." ...

(2.) Sri M. Ramaiah, the learned course! for the petitioners contends that the view of the learned Sessions Judge is wholly erroneous and that the order of maintenance passed by the learned Magistrate ought not to have been set aside. Smt, J. Chamanthi, the learned counsel for the respondent contends that In so far as the first petitioner has falsely alleged the respondent married a second wife, she is guilty of legal cruelty towards the husband by attributing immorality to the husband and is therefore not entitled to any maintenance. The short question for consideration In this revision therefore is whether a wife forfeits her right to maintenance under sec. 125 Cr. P.C.(new) if she falsely alleges that her husband married a second wife.

(3.) Section 125 (1) Cr.P.C. provides that if any person having sufficient, mean,s, neglects or refuses to maintain his wife, unable to maintain herself or his child, legitimate or illegitimate, unable to maintain itself, cr his father or mother, unable to maintain himself or herself a Magistrate may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or child, father or mother. There is no dispute of the first petitioner being the legally wedded wife of the respondent. There is also no doubt whatever that the respondent attributed unchastity to the wife in the registered notice issued by him prior to the institution of the petition for maintenance and subsequently also in the counter filed by him in the court. The Magistrate who held the enquiry came to a conclusion that the allegation of unchastity against the first petitioner is false. The learned Sessions Judge did not rightly disagree and on the other hand accepted the conclusion of fact as correct. it is well-settled that a deliberate false imputation of unchasty to a wife by the husband is legal cruelty and such legal cruelty is sufficient reason for the wife to live separately and claim maintenance to which she would be entitled on proof of refusal or neglect by the husband to maintain. Once, a wife is entitled to maintenance under section 125 (I), the only provision under which a husband can resist the claim is under sub section (4) of section 125 It reads as follows:-