Anandibai vs Shankar

Nevaskar, J.—This is a report made by the Third Additional Sessions Judge, Indore in a case u/s 488 of the Criminal Procedure Code which was tried by the Railway Magistrate Indore.

Anandibai applied for the award of maintenance as against her husband Shankar on the grounds that the latter had neglected and refused to maintain her and their children. It is also alleged by the wife that Shankar used to indulge in drinking and gambling and has squandered all the family utensils and ornaments. Allegations of cruelty by having recourse to beating were also made.

The learned Magistrate found after inquiry that for the last four or five years the husband and wife had lived apart and that he had necessary means to support the applicant and their children. He found against her as regards the allegations of drinking and gambling. As regards her allegations regarding cruelty the learned Magistrate did not give a definite finding. He held that beating a wife was comman among the members of the community to which the parties belonged and that for that reason such an act could not constitute that kind of cruelty which might endanger the life of the wife who received such beating. He therefore rejected the application of Anandibai for maintenance claimed by her.

A petition for revision of the order was submitted in the Court of Sessions by the applicant Anandibai. The learned Sessions Judge was of the opinion that the view taken by the Court below on the question of cruelty was not correct. He therefore examined the evidence on the question of cruelty. Reference in this connection was made by him to the statement of Budhiyabai the mother of the applicant Anandibai and those of witnesses Nathulal and Mohanlal barber. Their statements indicated that opponent Shankar often indulged in beating his wife. Defence witnesses Badalu and Narayan corroborated their statements by deposing about the fact that Anandibai bad lodged a complaint before the Panchayat regarding the beating given to her by her husband. In view of this evidence, which appeared to the learned Sessions Judge to be reliable, be was inclined to record a finding in favour of Anandibai that her husband had indulged in beating her. This was considered to be sufficient evidence of cruelty entitling her to refuse to live with her husband and yet claim maintenance. The learned Sessions Judge relied upon the decision reported in AIR 1950 Nag 168 Ganesh Sao Hari Prasad Sao Vs. Sm. Sheomala Devi for the view that if a wife has been ill-treated and there is ground for believing that if she returns, the ill-treatment will continue, then in that case the wife is entitled to live apart from her husband. He therefore held that the applicant Anandibai was entitled to maintenance from her husband in spite of the fact that she was not prepared to live with him. The amount of maintenance according to him ought to be fixed at Rs. 20 P.M. having regard to the income of the husband and the requirement of the applicant.

In my opinion the view taken by the learned Sessions Judge is correct. The learned Magistrate was not justified in taking the view that even if the beating is held proved, the wife would not be justified in refusing to live with her husband having regard to the community to which the parties belonged. Beating is a barbaric act and in the modern days it cannot be looked at lightly even if the parties belonged to less advanced and illiterate classes. It is well established that if the wife established her allegations with regard to cruelty, she is entitled to claim maintenance even without agreeing to live with her husband. In the present case there is sufficient evidence to indicate that applicant Anandibai used to be ill-treated by her husband. She for that reason had to live apart from her husband. For four or five years she continued to live separate from him and ultimately has come forward to claim maintenance. During all this period the husband did not care to maintain her or to make amends for his barbaric acts. In these state of things it would be harsh to compel the applicant to live with her husband in order to enable her to have food and clothing.

In the case to which a reference is made by the learned Sessions Judge i.e., 1950 Nag 168 Hemeon J. relied upon the following observations of Harries C.J. in Bathulu Bhagirathi Vs. Bathulu Lakshmi Devi, Bhagirathi vs. Lakshusi Devi:--

In a claim for maintenance it is no defence for a husband to say that he is prepared to take his wife back if the facts show that the wife has reasonable cause for fearing to return to the husband''s house. If a wife has been ill-treated and there is ground for believing that if she returns, the ill-treatment will continue, then the wife is entitled to live apart from her husband.........Causing a wife to leave the protection of the husband by ill-treatment is tantamount to driving the wife deliberately from the home.

I am in respectful agreement with the view taken in the aforesaid Patna and Nagpur decisions.

I am further of the opinion that the amount indicated by the learned Sessions Judge in his report is reasonable having regard to the income of the husband.

The report is therefore accepted and the order of the Magistrate is set aside. The applicant Anandibai is awarded maintenance at the rate of Rs. 20 P.M. from her husband Shankar from the date of the application. She is also entitled to have her costs from the opponent in respect of this application.