The burden of proof regarding the wife's refusal to live with the husband without sufficient reason lies with the husband, as per S.125(4) of the Code of Criminal Procedure.

1. The revision petitioner is the wife of the respondent. She filed M.C. 54 of 1973 before the Sub Divisional Magistrate, Alwaye claiming maintenance against the respondent. It was averred in the petition that the petitioner was living with the respondent till Kanni,1148 (October, 1972). On the 26th of Kanni,1148 she went to her parents' house just for a casual visit. The respondent thereafter refused to take her back. He did not care to maintain her. There were attempts from his side to get divorce from the petitioner. Arrangements have been made for bis marriage with a girl at Thrikkakara. The claim in the petition was for maintenance at the rate of Rs. 75/.

2. The respondent in his objections stated that the petitioner left his house without his consent and denied that there was any refusal on his part to take back the petitioner. There used to be disputes over some ornaments of the petitioner which her father took away. The respondent denied that there was any idea on his part to contract a second marriage. According to the respondent, attempts made by him and mediators to take the petitioner to his house have failed. He is prepared to maintain her; but the petitioner has refused to live with him without sufficient reasons.

3. The Sub Divisional Magistrate, Alwaye did not accept the contentions of the respondent and allowed maintenance to the petitioner at a monthly rate of Rs 50/-. The respondent filed Crl. R. P. 6 of 1975 before the Sessions Judge, Ernakulam. The learned Sessions Judge accepted the case of the respondent about bis offer to maintain the petitioner. The court observed that the burden of proving that there was sufficient reason for her refusal to live with the husband was on the petitioner and as she has not discharged that burden, she was not entitled to maintenance. The revision petition was accordingly allowed. The petitioner challenges the above order in this court. The respondent did not put in appearance.

4. The arguments of the learned counsel for the petitioner centred round the question of burden of proof. The contention put forward on behalf of the petitioner is that once it is proved that there was a refusal or neglect on the part of the husband to maintain a wife who is unable to maintain herself, it is upto the husband to prove that the wife was not willing to live with him and that there was no sufficient reason for such refusal.

5. S.125(1) of the Code of Criminal Procedure casts a responsibility on the husband to maintain his wife, who is unable to maintain herself. But S.125(4) states that no wife shall be entitled to receive an allowance from her husband under the section if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Evidently S.125(4) is an exception to the general liability to maintain, referred to in S.125(1) He who claims exemption from liability has to prove the existence of circumstances which entitle him to put forward such a claim. Viewed in the above light, it is for the respondent to prove that there has been an improper refusal on the part of the petitioner to live with him.

6. There are other reasons also for arriving at the above conclusion. S.125(4) mentions three contingencies where a wife may not be entitled to maintenance and all of them are placed on a per with each other. It will look ludicrous if the court is to hold that a wife should prove that she is not living in adultery. If it is for the husband to prove that the wife is disentitled to maintenance because she is living in adultery, there is no reason why a different rule regarding burden of proof should be followed in a case where the husband wants to escape liability to maintain the wife on the ground that she refuses to live with him.

7. No decision of the Kerala High Court on the question of burden of proof has been brought to ray notice. But the Lahore High Court had occasion to consider the poi