DURGHATIA Vs. AYODHYA PRASAD

JUDGEMENT

(1.) THIS is an appeal by the wife defendant in a suit by her husband for a declaration that she is not entitled to maintenance. The suit was dismissed by the learned Munsiff, but the first appellate Court passed a decree in the husband's favour.

(2.) THE points for decision are the following: Firstly tile form of the suit by the husband after the Magistrate ordered maintenance under Section 488, Cr. P. C. Secondly, whether the court-fee should be ad valorem as required by Section 7 (2) and Section 7 (4) or as for declaration under Article 17 (iii), Schedule 2, Court-fees Act. Thirdly, on the merits whether the husband has succeeded in proving the wife's disqualification on the ground of her living in adultery.

(3.) THE facts of the case are the following : The plaintiff Ayodhya Prasad Brahmin had married the defendant appellant about 10 years before the present suit when both were children. After she came of age she used to stay sometime with her parents and sometime at the plaintiff's village house, which is in charge of his brother, karta of the family. The husband is a student in a Sanskrit School at Rewa; where in addition to study he seems to have been also a temple priest. Naturally he would be going to his house now and then and at all events during summer vacation, which is usually from Chait to Jeth. The plaintiff, however, stated that in the Baisakh and Jeth of Sambat 2005 i. e. about two years before the suit he did not go home at all. The girl was brought from her brother's house to her sasural according to the plaintiff in Chait or Baisakh 2005, let us say, in March 1948. She stayed for 2 or 3 months and went back to her parents' house in Jeth, where she gave birth to a child in Kartik. The child died immediately or soon after. The husband made up his mind that it was an illegitimate child and did not take back the wife, and soon after married another. Then this first filed an application before the Magistrate Rewa under Section 488, Cr. P. C. , for maintenance; the husband's defence that she had been living in adultery was not accepted, and an order for maintenance at Rs. 10/- p. m. was passed. Then the plaintiff filed this suit, the plaint of which is somewhat vaguely worded; in effect the plaintiff wanted a declaration that the first wife was not entitled to maintenance as she had been living in adultery (Bivchar men jiwan britit kar rahi hai ). This declaration having been granted by the first appellate Court the wife defendant has come up in second appeal to this Court.