ANNAN NARASIMHA AYYAR Vs. RANGATHAYAMMAL

JUDGEMENT

(1.) THIS matter arises out of maintenance proceedings under Section 488 of the Criminal Procedure Code. The husband is the petitioner and he seeks to set aside the Order 8f maintenance made against him to pay the respondent, his wife, a monthly allowace of Rs. 15 as from 29 June, 1946. The main contention raised on behalf of the petitioner is that himself and the respondent have been living by mutual consent separately for a period of seventeen years. The respondent says that the period is only twelve years. It is not necessary to resolve the difference as by mere separate living it cannot be said that the married status between the husband and the wife has come to an end. Sub-section 4 of Section 488 provides that the wife will not be entitled to maintenance if the parties have been living separately by mutual consent. Mutual consent involves the consent of both parties and if any one of them decides to put a stop to separate living Sub-section 4 ceases to operate. Then the wife gets her right to claim maintenance subject to such defences as the husband may have under Section 488. There are no such defences raised here. I agree with the Court below that the respondent is entitled to maintenance from the petitioner. As regards the quantum there are several factors which have to be taken into account in favour of the petitioner. On account of the long separate living of the respondent the petitioner has re-married and has some children through his second wife. He has made commitments and after so many years a sudden drain of this kind upon his slender resources would simply crush him. It is said by the respondent that he has four looms but the Magistrate actually finds that he has two looms and he has no immovable property or any other source of income. So far as the respondent is concerned she has been so long maintained by her relations. It would appear that she herself has been earning at least Rs. 7 per month. Taking all these matters into consideration the amount awarded by the lower Court of Rs. 15 appears to be on the high side. It is reduced to Rs. 7-8- 0 per month from 29 June, 1946.