Kandaswami Gounder vs Nachammal

Sadasivam, J.—Petition to revise the order of the Additional First Class Magistrate, Pollachi, u/s 488(1) of the Criminal Procedure Code,

directing the petitioner to pay Rs. 20 per mensem to his wife and Rs. 5 per mensem to his child for maintenance. The petitioner married the

respondent about 6 1/2 or 7 years prior to this case and lived with her for two years. Then the respondent became ''pregnant and gave birth to a

child, Easwaraswami. Three months after the birth of the child, the respondent became demented. But she subsequently recovered her mental

health. The respondent is living in her father''s house. She claimed maintenance for herself and her child on the ground that the petitioner married a

second wife, and refused and neglected to maintain her. The respondent denied the fact of his having married a second wife and offered to take

back his wife and child. The learned Additional First Class Magistrate did not accept the case of the respondent, but accepted that of the petitioner

and awarded maintenance of Rs. 20 per mensem to the wife and Rs. 5 per mensem to the child.

The learned advocate for the petitioner contended that the alleged second marriage has not been strictly proved in this case. I am unable to

accept this contention. P. W. 2, Gopala Iyer, is an archaka in Sandamman Koil and he deposed that the respondent paid Rs. 2-8-0 obtained the

receipt Ex. P4 and married Myeathal on the 14th July 1960 in the temple. The learned Additional First Class Magistrate has accepted the evidence

of P. W. 2, Gopala Iyer. It was argued by the learned advocate for the petitioner that P. W. 2, Gopala Iyer, has not spoken to the ceremonies of

the marriage such as tying of tali. But P. W. 2, Gopala Iyer, has definitely stated that the petitioner herein married Myeathal and it was not

suggested to him that any of the essential ceremonies of the marriage did not take place. The learned Additional First Class Magistrate has also

taken into consideration the leave letter Ex. P.2 sent by the petitioner for getting married and the evidence of P. Ws. 3 and 4 about the petitioner

and Myeathal living together in coming to the conclusion that the petitioner married second wife. Even assuming that there was no marriage at all

the essential requisites between the petitioner and Myeathal, the evidence of P. Ws. 4 and 5 would clearly show that the petitioner was living with

Myethal and this would justify the award of maintenance on the ground that the petitioner was keeping a concubine.

The leasned Advocate for the petitioner referred to the evidence of P. W. 5 that her husband asked her to go and live with him. The learned

Additional First Class Magistrate has considered this fact in paragraph 7 of his judgment and observed that it was easy to get such an answer from

a woman of weak mind. He has found, at the end of that paragraph, that the present offer of the petitioner is not bona fide and is an after thought.

It is clear from the decision in Senapathi Mudaliar Vs. Deivanai Ammal, , that when a person marries a second wife and the first wife applies for

separate maintenance, any offer by the husband to take her back and treat her well cannot be taken to be Sincere and an order for separate

maintenance would be quite justified.

The learned Advocate for the petitioner contended that in order to justify the award of maintenance to a wife u/s 488 of the Criminal Procedure

Code the Court should find that the husband refused or neglected to maintain her and that the mere fact that the husband has contracted a second

marriage cannot amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of Sub-section (1) of Section 488

of the Criminal Procedure Code. He relied on the decisions in Senapathi Mudaliar Vs. Deivanai Ammal, Bela Rani Chatterjee Vs. Bhupal Chandra

Chatterjee, and Iqbalunnisa Begum and Another Vs. Habib Pasha, in support of his contention. The decision in Senapathi Mudaliar Vs. Deivanai

Ammal, that the mere fact that the husband has taken a second wife after the first wife refused to join him, cannot be said to amount to cruelty,

requires reconsideration in view of the subsequent legislation making bigamy by a husband also an offence and the amendment of Section 488 of

the Criminal Procedure Code by the Act IX of 1949 making it a just ground for a wife to refuse to live with her husband if he contracts a second

marriage. It is true that the explanation has been added only to proviso (1) to Sub-section (3) of Section 488, Criminal Procedure Code by the

amendment of 1949, and that the proviso governs only Sub-section (3) and not Sub-section (1) of Section 488 of the Criminal Procedure Code as

pointed out in Bela Rani Chatterjee Vs. Bhupal Chandra Chatterjee, and Iqbalunnisa Begum and Another Vs. Habib Pasha, and other decisions.

But, as pointed out in Ramji Malviya Vs. Smt. Munni Devi Malviya, though the proviso governs only Sub-section (3), the provision that remarriage

by the husband is a just ground for the wife''s refusal to live with him lays down a general principle, which must be borne in mind when it is to be

considered whether the wife''s refusal to live with her husband is without any sufficient reason within the meaning of Sub-section (4) of Section

It is pointed out in that decision that Sub-section (4) governs the whole section, including Sub-section (1) of Section 488, Cri. P. C. It is clear

from the decision that a wife, who refused to live with her husband on account of his remarriage, is therefore not prevented by Sub-section (4)

from claiming maintenance allowance under Sub-section (1). But the claim of the wife to recover maintenance was negatived in that case on the

ground that she deserted him and it was held the husband''s remarriage does not restore to her the right she had prior to the desertion. In the

decision in Bela Rani Chatterjee Vs. Bhupal Chandra Chatterjee, it has been held that it is not permissible to pray in aid the provisions of the Hindu

Married Women''s Right to Separate Residence and Maintenance Act for the purpose of construing Sub-section (1) of Section 488 of the

Criminal Procedure Code. In my opinion, it is proper for a Court, dealing with a petition u/s 488 of the Criminal Procedure Code to have regard to

the personal law of the parties, and, in fact in the decision in Bayanna Vs. Devamma, it was held in this Court that by virtue of Section 3 of the

Hindu Married Women''s Right to Separate Residence and Maintenance Act, the first wife is entitled to live separately and claim separate

maintenance, when her husband takes a second wife. So the respondent''s residing separately is legal, and once she lawfully resided separately the

duty of the husband is to give her separate maintenance u/s 488 of the Criminal Procedure Code and his refusal to do so would justify the

awarding of separate maintenance u/s 488(1) of the Criminal Procedure Code.

For the foregoing reasons, the finding of the learned Additional First Class Magistrate that the petitioner neglected to maintain his wife and that

the wife is entitled to separate maintenance is correct. The learned advocate for the petitioner was not able to show how the maintenance awarded

in this case is excessive. There is no ground to interfere with the quantum of maintenance. The criminal revision petition is dismissed.