PELLAKURU SYAMALAMMA Vs. PELLAKURU SAMBAIAH

JUDGEMENT

(1.) Crl. R.C. No.489 of 1987 is filed by the petitioner-wife against the judgment in Crl. R.P. No.1 of 1986 on the file of the Sessions Judge, Nellore division, Nellore. Crl. Petition No.934/87 is filed by the petitioner-husband, who is respondent in Crl. R.C. No.489/87 against the awarding of maintenance to the daughter.

(2.) The facts of the case are that the petitioner in Crl. R.C. No.489/87 was married to the respondent therein by name Sambaiah. She got a daughter through Sambaiah by name Lakshmi. It is the further case of the petitioner that the respondent has kept one Parameshwaramma as mistress and got children through her and completely neglected to maintain her and her daughter since 1980 onwards. Therefore, they filed a petition under Sec. 125 Crl. P.C. for grant of maintenance of Rs. 250/ per month each. The petitioners examined P.Ws. 1 to 3 and got Exs. P. 1 to P7 marked. The respondent examined R.Ws. 1 to 3 and got Exs. R1 to R6 marked on his behalf. It is the case of the respondent-husband that he actually married the said Parameswaramma with the consent of the petitioner and through Parameswaramma he got seven children and he is maintaining them all. It is his further case that he never neglected to maintain the petitioner and her daughter and, therefore, there is no cause of action for filing the present petition. The trial court after considering the contentions of both sides held that the petitioners are entitled for maintenance and awarded maintenance to the petitioner as well as daughter i.e. both the petitioners in the maintenance case. Against that order, the respondent husband filed a revision before the Sessions Judge, Nellore. The learned Sessions Judge, Nellore modified the order of the trial Court holding that merely because the husband has married the second wife, it cannot automatically be said that the first wife is entitled for maintenance under S.125(3) Crl.P.C. though a right to live separately is provided under S.125(3) Crl.P.C. and, therefore, the wife is not entitled for maintenance. However, the learned Sessions Judge confirmed the order of the Trial court with regard to the award of maintenance to the daughter. Against that order, the present two revisions are filed.

(3.) The learned counsel appearing for the petitioner-wife has contended that even as per the finding of the lower courts, the respondent husband is residing with his second wife Parameswaramma and has got seven children through her. Once the respondent is residing with another lady as his second wife, the petitioner being his legally wedded wife is entitled to live separately as per explanation to sub-sec.(3) of S.125 Crl.P.C. and there is obligation on the part of the husband to provide maintenance to the petitioner and it is not the case of the respondent husband that he is paying any maintenance to the petitioner or providing any other facilities for her maintenance. The learned counsel further contends that mere offer of the husband that he is ready to maintain the wife if she comes and lives with him cannot be said that there is no negligence on the part of the husband. Therefore, the petitioner wife is entitled for maintenance.