ROSE MARY Vs. TSARULSWAMY

JUDGEMENT

(1.) On the question regarding the maintenance of the petitioner, I am not satisfied that on the evidence there is such ill-treatment or cruelty as would justify her in living apart from the husband. There is some justification for the petitioner's complaint about the respondent's liaison with the woman Sitalakshmi.

(2.) But the occasional lapse from virtue of a husband does not entitle the wife to ask for maintenance under Section 488 of the Criminal Procedure Code, (vide Amaldoss V/s. Mrs. Kamala Amaldoss1), where King, J., holds that even when the parties are Christians the fact that the husband keeps a mistress will not give the wife a right to insist that he should give up the mistress as a condition precedent to her living with him. Further a wife cannot refuse to go and live with the husband solely on the ground of his having a mistress. In an earlier case in Arunachala V/s. Anandayammal (1937) 2 M.L.J. 488, Burn, J., has held that under Section 488 of the Criminal Procedure Code the wife can only claim maintenance, i.e. food, raiment and lodging and cannot insist on conjugal felicity and fidelity or even treatment as wife. In view of these authorities, even if the respondent was having intimacy with Seethalakshmi, petitioner cannot put forward that as an excuse for refusing to go to him. I am therefore not satisfied that the order refusing maintenance to the petitioner is wrong.

(3.) But the matter rests on a different footing as regards the children. The lower Court does not advert to this aspect of the case at all. There is no proof that the children are able to maintain themselves. It has been found that the respondent has neglected to maintain them. I therefore direct that the respondent do pay Rs. 8 per child per month as his maintenance from the date of the filing of the petition. Regarding the custody of the children, respondent is at liberty to take such legal step as he is entitled. Until then the respondent should pay their maintenance to the petitioner.