Andhra HC (Pre-Telangana)
Golla Seetharamulu vs Golla Rathanamma And Anr. on 29 January, 1990
Equivalent citations: 1991CRILJ1533, II(1990)DMC257
JUDGMENT
1. Radhakrishna Rao, J. :- This is a petition filed under S. 482 of the Code of Criminal Procedure to quash the orders passed in Cri. Revision Petition No. 14 of 1987 on the file of the I Additional Sessions Judge, Kurnool.
2. The petitioner is the husband the respondent is the wife. The parties are Hindus and the marriage between them took place in the year 1963 at Tirupati according to Hindu religion and custom. Both lived together happily for about a period of three years. During that period they did not beget any children. In December, 1966 she went to her parents' house for Sankranti festival and the respondent made no attempt to take her back and from then onwards they started living separately. She got issued a notice on 18-7-1984 to pay a monthly allowance of Rs. 500/- per month but the husband never cared to take the notice and reply to it. Therefore, she filed a petition before the Addl. Judicial First Class Magistrate, Nandikotkur, under S. 125, Cr.P.C. claiming a maintenance of Rs. 300/- per month alleging that her husband wilfully neglected to maintain her.
2A. The husband, who is the petitioner herein, resisted the application on the ground that she deserted him and that she had illicit intimacy prior to and subsequent to the marriage with her sister's husband.
3. On a consideration of the entire material on record, the learned Magistrate rejected the contention of the husband and accepted the plea set up by the wife as correct and awarded a maintenance of Rs. 200/- per month taking into consideration the financial status of the husband and the annual income that is being derived by the joint family of the husband from the agricultural land. Aggrieved against the said award of maintenance, the husband preferred a revision petition. But that revision petition was dismissed confirming the finding of the learned Magistrate. Hence this petition by the husband, under S. 482, Cr.P.C.
4. When a party has already availed of the revisional jurisdiction under Ss. 397 and 399, Cr.P.C. the question of invoking the jurisdiction of this Court again under S. 482, Cr.P.C. is very much in doubt.
5. It may be appropriate to mention here that after the order of the learned Magistrate granting maintenance and after filing a revision petition before the Additional Sessions Court, the petitioner herein filed a petition under S. 13(1)(i)(b) of the Hindu Marriage Act for divorce on the ground that his wife deserted him for more than 2 years. But it appears that desertion is about 10 years prior to the filing of the petition for maintenance and 12 years prior to the filing of the petition for divorce. The learned Subordinate Judge who tried the O.P. found that the desertion as pleaded by the husband is not correct and the wife was residing separately on account of the conduct of her husband only and ultimately refused to grant divorce. The husband carried the matter in appeal in CMA No. 954 of 1988 and we have confirmed the order of the learned Subordinate Judge today in a separate order in that C.M.A.
6. The main contention that has been raised by the petitioner in this petition is that the respondent-wife is residing separately since about 10 or 12 years prior to the filing of the petition for maintenance and therefore, she waived her right by keeping herself silent all these years and due to this long spell of time she disentitles herself from claiming any maintenance.
7. Under Section 125(1), Cr.P.C., if the husband having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole.
8. Under Section 125(4), "no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
9. In order to satisfy the ingredients of this Section, the first and foremost requirement that a wife has to prove is that her husband neglected or refused to maintain her and she is unable to maintain herself. But as per S. 125(4), Cr.P.C. a wife is not entitled to receive such an allowance from her husband if she is living in adultery, or if she refuses to live with him without any sufficient cause or if they are living separately by mutual consent.
10. In this case, both the courts below have concurrently found that it is the husband that neglected his wife to maintain her and that he also failed to establish the alleged carnal relationship of the respondent with her sister's husband. It is an admitted case that the marriage between the petitioner and the respondent took place in 1963 and that they lived happily together as husband and wife for about a period of three years. Thereafter only differences arose as no children were born out of their wedlock. In December, 1966, she appears to have gone to her parents' house for Sankranti festival and the petitioner never cared to bring back her to the matrimonial home.
11. Now we have to see whether the petitioner has proved any of the conditions laid down in S. 125(4), Cr.P.C. in support of his contention that she waived her right due to the long lapse of time or disentitles herself to claim any maintenance in view of the restrictions placed by S. 125(4), Cr.P.C.
12. It is not the case of the petitioner that both of them are living separately by mutual consent. But he alleges that the respondent is leading an adulterous life and she is having illicit intimacy, even prior to or subsequent to the marriage, with her sister's husband. This imputation is found to be baseless and unfounded by both the courts below. If what has been alleged by him is correct, he would not have waited for such a long time without filing an application for divorce under S. 13(1)(i) of the Hindu Marriage Act. But curiously enough, he filed an application for divorce under S. 13(1)(ib) of the Hindu Marriage Act. The conduct of the petitioner in not filing an application for divorce on the ground of adultery, keeping himself quiet for about a period of more than 10 years, and filing an application for divorce on the ground of wife's desertion shows the hollowness of the claim made by him about the wife living in adultery. On the other hand, the plea that has been raised by the petitioner is that the respondent insisted him to get separated from the joint family and to have separate mess. Both the pleas are inconsistent to each other. The attitude of the petitioner in raising inconsistent pleas and not caring to maintain her since 1966 and not even filing an application under S. 9 of the Hindu Marriage Act clearly demonstrates that what has been pleaded by him is not correct and his contention that the respondent is living in adultery has to be rejected.
13. Then the only other limb of restriction placed by S. 125(4), Cr. P.C. under which the petitioner wants to take a shelter in order to avoid payment of maintenance to the respondent is that she refused to live with him without any sufficient reason. The wife averred in her petition for maintenance that she has been living with her parents away from the matrimonial home on account of the conduct exhibited her husband and other members. The only motive behind his conduct is that she did not beget any children and she also refused to give consent for him to remarry again and he completely neglected to maintain her in spite of the advice of elders of the village at Jallapuram and she made several panchayats but all her efforts were in vain. The case of the respondent that she was neglected by her husband due to her barrenness only appears to be a probable one rather than the ground raised by the petitioner about the demand of his wife for a separate mess and to have a partition of the joint family properties. The husband, who is responsible for his wife staying away from the matrimonial house for a lawful cause, cannot take advantage of his laches and claim that his wife has waived her right to claim maintenance.
14. The word 'waive', according Chambers 20th Century Dictionary means, "to put away, reject, to abandon, forsake, to vacate, to resign; to outlaw (a woman - her status in the eyes of the law being such that the usual term was not applicable to her) (hist); to abandon (stolen goods); to give up voluntarily, as a claim or a contention (law) etc."
Simply because the wife has not claimed maintenance for a long period, it does not mean that she has completely abandoned her right or voluntarily given up her right to claim maintenance. In her application she pleaded that she has no other source of income and she is unable to maintain herself. She might be living with her parents to the utter humiliation of other ladies and without any courtesy and respect which a daughter is entitled to in her parental house if she is living quite happily and peacefully with her husband, with the only fond hope of reunion. But when all her hopes are shattered away, and when there is no other source of income and when she feels herself a burdensome to her parents or brothers, she has approached the Court claiming maintenance. Apart from that, S. 125 Cr.P.C. has not restricted the period of limitation to claim maintenance. When the statute has not prohibited any wife to claim maintenance with (within) any period of limitation, the petitioner is not entitled to plead that she has waived her right to claim maintenance due to the long lapse of 10 or 12 years after she left his house. Due to the changed circumstances in her parents house, her parents may not be willing to maintain her and they may not be in a position to maintain her since other children have grown up and some other problems might have cropped up in her family. Under these circumstances, the petitioner is not entitled to raise the plea that the respondent has waived her right to claim maintenance after a long lapse of 12 years. The petitioner has invented the story of his wife living in adultery only to avoid the payment of maintenance and it is found to be not correct by both the Courts below.
15. Regarding the quantum of maintenance, the trial Court has come to the conclusion that the husband's joint family is having 20 acres of wet land and 20 acres of dry land and they would be getting Rs. 80,000/- per annum and keeping in view of the financial status of the husband, the trial Court has awarded a maintenance of Rs. 200/- per month to the wife. In our view, this amount is not at all excessive but is a reasonable and just one which the respondent is entitled to.
16. In the appeal, the Criminal Petition is dismissed.
17. Petition dismissed.