T. Buvaneswari vs V. Ramakrishnan

Janarthanam, J.—The unsuccessful wife is the revision petitioner. She filed a petition for maintenance against the respondent/husband under

S. 125(i) Cr.P.C. contending that she was the legally wedded wife, that she was unable to live with her husband happily as he was impotent, that

within three months of marriage, she was driven out of the house by her husband, that she took shelter in her father''s residence ever since then,

that with the meagre income her father was able to earn by his profession as barber and with the meagre income her mother was earning by selling

of idlies, she was maintained by them, that her husband was possessed of means having properties in the form of a house, punja lands and bullocks

worth about Rs. 20,000/- that she having been neglected by her husband and that she herself being unable to earn anything, she has filed the

petition claiming maintenance in a sum of Rs. 300/- per month from the date of petition.

The respondent/husband, resisted the move made by the wife by filing a counter stating that he was not really impotent, that in fact the marriage

had been consummated, that she was really conceived that she aborted the child subsequently, that he was prepared to take her back and live with

her, and that he was not possessed of properties as stated by her in the petition.

The Court below, taking into consideration the evidence of the petitioner as P.W.1 and the respondent as R.W.1 came to the conclusion that

the petitioner is in fact really having an independent income to such extent as to support herself and that apart, the offer made by her husband to

take her back and live with her in the conjugal home had been rejected by her. On these conclusions, the petition had been dismissed giving rise to

revision.

The learned counsel for the petitioner would contend that the conclusions reached by the Court below on both the aspects of the matter do not

appear to be correct. Regarding the offer made by the husband to take the wife back to the matrimonial abode, no doubt such an offer had been

made in the counter filed by the respondent. The offer was also made by the husband during trial. The wife also appears to have accepted the offer

as disclosed by her evidence. Despite all those things, the respondent/husband did not take steps in taking the wife back and giving her the

matrimonial home. The mere offer to maintain is not sufficient. The offer to maintain must be a bona fide offer and not made with the object of

escaping the obligation. It is found that the husband had driven out the wife from the matrimonial abode when he was questioned about his

impotency. In such circumstances, his subsequent offer to keep her in his house cannot be taken to be bona fide and he cannot escape from his

responsibility to maintain her by merely making such an offer, because he may break his promise as soon as she gets home. The offer made by the

husband without any further steps having been taken in that regard appears to my mind, an empty offer to maintain the wife in order to get himself

relieved of the obligation of providing maintenance.

It is not as if the wife went out of the matrimonial abode without any reason. It appears that she went out of the matrimonial abode as a result of

her not finding any matrimonial bliss on the part of husband in the sense of herself enjoying the matrimonial pleasures of sexual life with her

husband. On this aspect, the petitioner would categorically assert that even on the day when she was examined she was a virgin in the sense of the

marriage not having been consummated. She even challenged that she will undergo a medical check-up if such a thing is ordered to be made. On

the face of such testimony, the case of the respondent that the marriage was in fact consummated resulting in herself having become pregnant and

subsequently the same had been aborted cannot at nil be believed in the circumstances. As such, the wife in such a situation is entitled to claim

separate residence and maintenance from the husband and her refusal to live with the respondent cannot at all be stated to be not on a justifying

ground. In this view of the matter, I am of the view that the wife is entitled to a separate residence and to claim maintenance from the respondent

and the offer made by the husband to take the wife back to the matrimonial abode is an empty offer having no meaning at all.

Regarding the other aspect of the matter that, the wife is unable to maintain herself, it transpires from the evidence of P.W.1 that she was

keeping her life and soul in tact with the assistance rendered by her parents by their earnings. P.W.1 would further states that her father is

employed as a barber earning a meagre income of Rs. 10/- daily and that her mother is also earning a meagre income of Rs. 5/- daily and she was

rendering assistance to her mother in the conduct of her idly business. In such circumstances, it cannot at all be stated that she was having sufficient

and adequate income to maintain herself without any assistance from any quarters, whatever. Under law, the burden initially lies in the first place

upon the wife to show that the means of the husband are sufficient. But, if the initial onus is discharged, the husband is not relieved of the obligation

to maintain his wife on the ground that the wife is having means to support herself by her own labour or that the wife is having able and willing

relatives to maintain her. Merely because she refuses to earn does not mean that she is not entitled to maintenance. So far as the wife is concerned,

her potential earning capacity is not a relevant consideration. The word ''means'' in the section does not signify only means such as real property or

definite employment. If a man is healthy and able bodied, he must be considered to have the means to support his wife and he cannot be relieved

of the obligation on the ground that he is unemployed. The word ''''sufficient means"" includes the capacity to earn money and if a man is capable of

earning money, he has to earn the means to maintain his wife, child or parents. The possession of property is not at all a criterion for awarding

maintenance. It is independent of possession of property. If a person is capable of doing labour, the fact that he is not earning any thing is not at all

the criterion for not awarding maintenance. So far as the instant case is concerned, though the wife as P.W.1 would state that her husband is

possessed of adequate property in the shape of house, lands and bullock carts worth Rs. 20.000 besides he is getting a monthly income of Rs. 150

he having been employed in the Noon Meal Scheme Yet her evidence is refuted by the husband a P.W. 1 by stating that he was not possessed of

means as stated by the wife, but he would candidly admit that he is earning Rs 150 per month by having employed in the Noon Meal Scheme.

It is nobody''s case that the respondent is not a hale and healthy young man. He appears to be aged 35 years old and he is in a position to earn.

On the face of such evidence, the finding recorded by the court below that the wife was in a position to support by herself and consequently no

maintenance might be ordered is rather perverse and the same deserves to be set aside.

Taking into account the relative position of the spouses and the reasonable amount that is required to carry on the day to day life, according to

the status of the parties, I feel a minimum amount of Rs. 200 by way of maintenance should be ordered to be paid by the husband to the wife.

In the result, the revision petition is allowed. The order of the lower Court is set aside. The respondent/husband is ordered to pay Rs. 200 per

mensem by way of maintenance to the wife from the date of petition, i.e., 5-4-1983.