Back
Andhra Pradesh High Court
Judges : SHARFUDDIN AHMED
B.Rukmini Bai - Appellant
Versus
B.B.Suraj Bhan Singh - Respondent
Decided On : 11-02-62
MAINTENANCE - ADULTERY - ENFORCEMENT OF ORDER - HUSBAND'S RIGHT TO RESIST CLAIM - JURISDICTION - Section 488 (3), (5), 490 Cr. P. C.
Fact of the Case:
Wife filed a petition for maintenance against her husband under Section 488 Cr. P. C. The husband resisted the claim on the ground of adultery on the part of the wife. The trial court granted maintenance to the wife and the daughters. The husband paid the maintenance as per the orders of the Court till 5-4-1957 but subsequently stopped payment. The wife sought to enforce the order passed against the respondent in M. C. No. 20 of 1954 to recover the arrears of maintenance. The husband filed a counter under Section 488, Clauses 3, 4 and 5 of Criminal Procedure Code admitting that an order granting maintenance had been passed against him and he was paying the same for sometime. He, however, contended that as the petitioner-wife was living an adultery and had committed several acts of adultery even subsequent to the passing of the order he was not bound to pay her maintenance -- past, present or future.
Finding of the Court:
The court held that the husband was entitled to resist the claim of the wife for maintenance on the ground of adultery after an order has been passed in favour of the wife, at the stage of enforcement of the order. The court further held that the plea of unchastity could be raised at the time of enforcement of the order and it was not necessary for the husband to file a separate petition for getting the order cancelled. The court also held that the wife was not entitled to get maintenance at least till the date of the cancellation of the order.
Issues: 1. Whether husband is entitled to resist the claim of the wife for maintenance on the ground of adultery after an order has been passed in favour of the wife? 2. Whether the plea of unchastity could be raised at the time of enforcement of the order? 3. Whether the wife was entitled to get maintenance at least till the date of the cancellation of the order? 4. Whether the Court had jurisdiction to hear the matter?
Ratio Decidendi: 1. The court held that the husband was entitled to resist the claim of the wife for maintenance on the ground of adultery after an order has been passed in favour of the wife, at the stage of enforcement of the order. The court relied on Section 488 (3) and (5) of the Criminal Procedure Code, which provides that if any person so ordered fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount due and may sentence such person to imprisonment. The court also held that on proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 2. The court held that the plea of unchastity could be raised at the time of enforcement of the order. The court relied on Section 488 (3) and (5) of the Criminal Procedure Code, which provides that if any person so ordered fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount due and may sentence such person to imprisonment. The court also held that on proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. 3. The court held that the wife was not entitled to get maintenance at least till the date of the cancellation of the order. The court held that it would amount to condonation of, the conduct of the wife in part while finding it objectionable subsequent to the date of cancellation. 4. The court held that the Court had jurisdiction to hear the matter. The court relied on Section 490 of the Criminal Procedure Code, which empowers the enforcement of order by any Magistrate in any place where the person against whom it is made may be.
Final Decision: The revision case was dismissed.
( 1 ) THE question that requires determination in this revision case is whether husband is entitled to resist the claim of the wife for maintenance on the ground of adultery after an order has been passed in favour of the wife i. e. , at the stage of enforcement of the order. Briefly the facts of this revision may be stated:
( 2 ) THE petitioner is the wife of the respondent She filed a petition, M. C. No. 20 of 1954, for maintenance against her husband contending that he was neglecting to maintain her and the minor children. The claim was resisted by the husband on the ground of adultery on the Dart of the wife. After an enquiry the wife granted maintenance at the rate of Rs. 40. 00 while the daughters were given Rs. 20. 00 each. The respondent paid the maintenance as per the orders of the Court till 5-4-1957 but subsequently stopped payment. Thereupon, the petitioner sought to enforce the order passed against the respondent in M. C. No. 20 of 1954 to recover the arrears of maintenance. The respondent filed a counter under Section 488, Clauses 3, 4 and 5 of Criminal Procedure Code admitting that an order granting maintenance had been passed against him and he was paying the same for sometime. He, however, contended that as the petitioner-wife was living an adultery and had committed several acts of adultery even subsequent to the passing of the order he was not bound to pay her maintenance -- past, present or future. So far as the daughters were concerned, he showed his willingness to pay the amount due to them under the maintenance order.
( 3 ) THE point formulated for determination was whether or not the petitioner was entitled to maintenance on the ground that she was living in adultery. The learned Additional District Munsiff Magistrate, Nellore who tried the case, on a consideration of the evidence adduced gave a finding against the petitioner and thus dismissed her claim for maintenance. On the question of jurisdiction also he held that the Court was competent to hear the matter. Aggrieved by this order, the petitioner went in revision to the Sessions Judge, Nellore who refused to entertain the revision as it was a matter pertaining to appreciation of evidence. Hence the present revision case.
( 4 ) THE contention of the learned counsel for the petitioner seems to be that the plea of adultery on the part of the wife cannot be raised at the stage of enforcement of the order. It is only under separate proceedings that the matter can be agitated again and the order of maintenance got cancelled. In other words, his contention is that under Section 488 (3), Cr. P. C. it is not open to the husband to seek cancellation of the order for which separate provision has been made under Section 488 (5), Cr. P. C. Section 488 (3) lays down as under:"if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner herein before provided for levying fines, and may sentence such person, for the whole at any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. "while Sub-section (5) provides that:"on proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. "
( 5 ) UNDOUBTEDLY both the sub-sections contemplate a stage subsequent to the passing of the maintenance order, in the instant case, when the wife-petitioner applied for execution of the order in her favour the husband pleaded that he was not liable to pay as the petitioner was living in adultery. It is to be noted that the same plea was raised by the husband when the application for maintenance was filed but it was negatived by t
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
