DAULATRAM VYAS Vs. SARASWATHI BAI

JUDGEMENT

(1.) When some sort of allowance is being paid to the wife by the husband, is she precluded from claiming maintenance under section 125, Criminal Procedure Code? Can the husband take shelter under the fact of his paying some amount to the wife to contend that there is no neglect or refusal to maintain within the meaning of section 125, Criminal Procedure Code? Mainly these are the questions which I will have to answer in this criminal revision case.

(2.) This case arises out of a petition filed by a wife against her husband for maintenance under section 125, Criminal Procedure Code at the rate of Rs. 500 per month which is the maximum prescribed under that provision. The couple had been married long time ago and had two daughters, one died as an infant and the other grew up and later married. From 1952 the wife was living apart from her husband in a separate house. She was being paid Rs.100 per month as allowance. In about 1966 it was raised to Rs. 200 and later in 1969 to Rs. 300 per month. Originally they were living in Vizianagaram. The wife later shifted to Hyderabad. She filed the present petition saying she had become debilitated in body, required female help and medical treatment and that she needed more money in view of the growing cost of living. The husband apposed this claim saying that since he was paying some amount towards her maintenance there was no neglect or refusal to maintain on his part which would attract section 125, Criminal Procedure Code. He alleged that the two spouses were living apart by mutual consent. He maintained that she had no business to live in Hyderabad, while he was living in Vizianagaram and. that in any case the claim for Rs. 500 per month was totally unwarranted.

(3.) The learned Third Metropolitan Magistrate observed that in the circumstances of the case it was evident that the husband had developed illegal intimacy with other women prior to 1952 and made the wife live in a separate rented house. He was not even kind enough to personally hand over the amount of Rs. 100 per month to his wife; he was sending the amount only by money order. According to his own showing, as the learned Magistrate has pointed out, he never visited her and saw her even. He did not even know where his wife was living and never bothered to enquire where she lived all these years. He was totally ignorant of the condition of her health. The learned Magistrate, therefore, concluded that "the conduct of the respondent (husband) which has been described above suggests that he made her life unbearable and that she was constrained to leave the house and stay away from, him. These circumstances establish that the petitioner is entitled to live separately from him." Further, the learned Magistrate observed that it could not be said, that the parties had agreed to live separately. On account of the behaviour and conduct of the husband, the wife was constrained to live away from her husband. In the view of the learned Magistrate, this was neglect of the wife by the husband. In addition to the amount he was paying every month, the husband was also paying the rent of the house in which the wife was living in Vizianagaram so long as she lived there. On a consideration of the circumstances and the state of health and her requirements, the learned Magistrate found that she was in need of more than Rs. 500 per month. It was also found that the husband was making a monthly income of not less than Rs. 5,000 and that there are no other dependants on him. Equally significant is the finding that the wife had not chosen to live in Hyderabad on her freewill and volition but has been compelled to stay here to avoid the displeasure of her husband by staying in the same town as he. I do not see any justification to doubt the correctness of these findings. They naturally create a sympathy towards the wife. However, a Court of law cannot base its decision on sympathy alone. Its decisions must be in accordance with law.