Narayanan Nair vs Karthiyayini

Singaravelu, J.—This is a revision petition filed by the husband of the respondent against this order of the V Additional Sessions Judge

Madras Awarding maintenance of Rs. 100 per mansion from the date of the petition.

The respondent Karthiyani field an application under S. 125 of the Crl. P.C. a against the revision petitioner /husband for maintenance alleging

that they were married on 1st June, 1959, that they have four children and that she was driven out from the marital house on 12th May, 1979. She

further stated that her husband is drawing a salary of Rs. 900 per mensem in a company and therefore, claimed a sum of Rs. 300 at maintenance.

The husband admitted the marriage and that children were born to them, but that in or about 1970, she had illicit intimacy with a neighbor and

when this was found out, she voluntarily left the family and lived separately. The husband therefore, pleads that the respondent is living away on her

own accord and hence she is not entitled to claim any maintenance, and that the amount claimed is also excessive.

On these contentions, the learned Magistrate found the wife had adultery and therefore, was disqualified to claim maintenance. Consequently,

the application was dismissed.

On appeal, the learned Sessions Judge reverse the finding and held that the adultery was not satisfactorily proved and therefore, awarded

maintenance to the appellant/wife at the rate of Rs. 100 per mensem from the date of the petition. Hence the revision by the husband.

The first point for consideration in this revision is, whether the husband has proved the alleged act of adultery against his wife, and, even if it is

true, whether it is a disqualification for the wife to claim maintenance. On this aspect, the husband examined himself as R.W.1 and stated that while

he was away to his office, his wife was found in bed with a neighbor, one Kunhiraman, who is a tailor by profession. R.W.2 is the daughter of the

petitioner and the respondent, who claims to have seen this incident. For one thing, the alleged incident was in 1970 and her evidence was

recorded in the year 1980, that is, after a lapse often years. For another, R.W.2 was then a school going girl aged about 10 years and now she is

aged about 20 years living with her father. The trial court accepted her evidence, though the appellate court disbelieved the same giving its own

reasons. It is not quite necessary to analyse her evidence and record a finding with reference to the single act of adultery spoken to by R.W.I. It is

Unfortunate that his own daughter had been made to speak against the mother since the mother and the daughter are living away from each other

for several years. Further, there are some suspicious circumstances in the evidence of R.W.2 (daughter) as set out by the appellate court. It is

prima fact rather difficult to believe that the girl (R.W.2), who was going to school carrying her midday meal, came back to the house on the day in

question as if to witness the alleged occurrence, Further, the evidence is that the paramour, Kunhiraman, and the respondent were in the bedroom

together and that they had kept the door open. The appellate court, placing reliance on those circumstances, has held that, the daughter has been

made to speak against the mother and that the whole incident is a doubtful one.

As already stated, even assuming for a moment, that: the respondent had committed adultery with Kunhiraman on theft day, it does not affect

the merits of the case for maintenance, because it was only a single incident and it cannot be construed as ''living in adultery . There is no evidence

on the side of the husband that- after that incident she has been Continuously living with her paramour.

C1.3 of S. 18 of the Hindu Adoptions and Maintenance Act 78 of 1956, says that a Hindu wife shall not be entitled to separate maintenance

from her husband if she is unchaste. The said Section uses the present tense, namely, if she is unchaste that is, the fact that she might have been

unchaste long time back would not disqualify her from claiming separate maintenance.

Apart from the alleged incident in 1970, there is no proof that the wife continues to the unchaste. In such cases, the wife is entitled to what is

called ""starving maintenance"". It may also be stated in this connection that eves when the husband came to knew of the incident on the very same

date, he had not taken any stops for divorce or for judicial separation for more than a decade. Of course, the husband would say that when this

incident was found out, the wife voluntarily went away from his bourse abandoning him and his children. As against this, the wife would say that she

was driven out from the house. The fact remains that the husband had not taken any steps to revoke that marriage or at least send a notice to that

effect. The marriage, therefore, subsists, and the single act of adultery which took place some time in 1970 will not be a ground for refusing

maintenance.

The Learned Counsel for the petitioner would argue, at length that the wife had left the home of her husband voluntarily in 1970 and that she

had not chosen to claim maintenance till this application was filed in 1979. As against this, the wife would contend that she was driven out in 1970

and that livings she was living in her brothers'' houses here and there for some years. It was then contended on behalf of the husband that her own

brothers have not chosen to come and give evidence about her abandonment. It is inconsequential, because the brothers perhaps want to remain

neutral in the entanglement between husband and wife in the background set out supra.

The result of my discussion is that even if the alleged single act of adultery committed in 1970 is held to be proved, that does not come under

the provisions of S. 18(3) of the Hindu Adoptions and Maintenance Act. Even on merits, it is only past adultery which took place long ago.

Therefore, she will be entitled to starving maintenance from her husband, who had not chosen to annul the marriage on the ground of the alleged

adultery.

There remains the quantum of maintenance. The lower court has awarded a sum of Rs. 100 per mensem as maintenance. The petitioner would

state that his salary is not Rs. 900 per mensem but only Rs. 700 and odd and that he has got four children to be maintained. He is employed as

worker in a private company. The lower appellate authority has awarded maintenance from the date of the petition, namely, from 1979, which now

comes to several thousands of rupees. Taking an overall picture of the whole case and in view of the discussion in the previous paragraphs, I am of

opinion that the maintenance has to be reduced from Rs. 100 to Rs. 50 per mensem.

Accordingly, the revision is partly allowed, and the petitioner/husband is directed to pay the ""Starving Maintenance"" of Rs. 60 per mensem to

the respondent herein from the date of her petition. The revision petition is ordered accordingly.