S.R. Govindarajan alias Babu vs Rukmani Govindarajan and Another

Maheswaran, J.—This revision is filed by the husband of the 1st respondent, against the order of the IV Metropolitan Magistrate awarding a

maintenance of Rs. 150/- to the wife and Rs. 100/- to her son. The wife filed an application under S. 488, Crl. P.C. (old Code) against her

husband alleging that he has neglected to maintain her.

The first respondent-wife was married the petitioner on 5th July, 1965. Their marital life was not happy even though two children were born out

of the wedlock. The first respondent was subjected to ill-treatment by her mother-in-law and sometimes she was beaten by her. The first

respondent left the house on 22nd September, 19/3 unable to bear the cruel treatment. The petitioner resisted the application filed by the wife and

contended that he was always willing to take her back and live with her, but the first respondent persisted in living with her parents and did not

want to give him the consortium. On the evidence adduced before him, the Magistrate found that the first respondent has been neglected by her

husband for number of years and granted the maintenance as stated above even though it was brought to his notice that an application for

restitution of conjugal rights was allowed.

The revision petitioner''s only contention before me is that the decree for restitution of conjugal rights is a complete answer to the claim for

maintenance under S. 488, Crl. P.C. This contention requires examination. Certain dates are relevant for appreciating the points at issue. The

respondent-wife filed the original petition for maintenance on 15th Mirth, 1974. The revision petitioner field an application in O.P. 25 of 1975 for

restitution of conjugal rights on 18th January, 1975, That application was allowed on 30th April, 1976. I must here point out that that order has

become final as the respondent-wife has not appealed against that decree. After this decree for restitution of conjugal rights, the original petition

was allowed by the Magistrate on 30th June, 1976 granting maintenance to the wife. The fact that a decree for restitution of conjugal rights was

passed was brought to the notice of the Magistrate Bad he observed as follows:-

It was brought to the notice of this Court that the petition for restitution of conjugal rights has been allowed. However, the petitioner insists on

getting maintenance.

It is because of this insistence of the wife, the learned Magistrate thought it fit to grant the maintenance. In Geeta Kumari v. Shiva Charn 1975 Crl.

L.J. 137 Beri, Chief Justice of Rajasthan High Court, made the following observations in disposing of a similar case:-

What could possibly be a just ground for a wife to refuse to live with her husband would ordinarily also provide an answer to the suit for restitution

of conjugal rights. Where a Civil Court, after considering the plea raised by the wife as against demand of the husband for restoring to him his

conjugal rights came to the conclusion that the wife must render society to her husband as is expected by law, then the proviso to subject, (3) of S.

488 Crl. P.C. seems to some into operation. Right up to this Court it has been considered and found that the husband is anxious for his conjugal

rights and the wife has been resisting the request. Can it be said that the husband wan refusing to maintain the wife in these circumstances ?

Reference in this connection may be made to Jiwan Singh Vs. Subedar and Another, where the learned Judge observed that the Magistrate has a

discretion under the section to pass an order for maintenance but that discretion must be exercised upon judicial principles and it is not in

accordance with sound judicial principles to compel a husband to maintain a wife who contumaciously refused to obey this order of a Civil Court

directing her to live with her husband. The decision in a suit against the wife for restitution of conjugal rights is equivalent to a decision by a

competent Civil Court that the wife had no sufficient reason for refusing to live with her husband and the Criminal Court cannot inquire into any

allegations of failure of neglect to maintain prior to such decision.

I am in respectful agreement with these observations and I am of the view that a decree for restitution of conjugal rights is a good answer to the

wife''s claim under S. 488, Crl. P.C. (Old Code). In this case the wife has not gone and lived with the husband even after the decree for restitution

of co juggle rights. If she has the least moral conscience j she might have obeyed the decree and I am now told by the learned counsel appearing

for the revision petitioner that as she has not obeyed the decree, he has also taken steps for proceedings to divorce her. The learned Magistrate

himself has observed that the feelings between the parties are very strained. This is a clear case where the wife does not want to live with her

husband. Under those circumstances, there is no justification for claiming separate maintenance from her husband. The revision is therefore partly

allowed, the order granting maintenance to the wife is set aside, but the order granting maintenance to the child will stand. Maintenance to the son

will be paid from the date of the judgment of the trial Court.