Presumption to be drawn by all Courts.

The petitioner, Subbamma, had filed a petition, on 9th October, 1947, in the lower Court, under section 488 of the Code of Criminal Procedure against her husband, the respondent, claiming maintenance for herself, at Rs. 100 a month, and for Pullanna, her son aged 17 on the date of the petition, at Rs. 50 a month. She claimed to be the third wife of the respondent and to have married him some twenty years back. She delivered two children who died soon after birth. So, the respondent married P.W.2’s daughter as his fourth wife. This fourth wife delivered a son, Pedda Raja Reddi, and died. Thereafter the petitioner delivered her son Pulla Reddi alias Pullanna. Misunderstandings between her and the respondent arose when the respondent celebrated the marriage of his brother’s daughter, Sivamma, and wanted to give her two seers of gold and Rs. 2,000 in cash to which she strongly objected and even sent round notices to his debtors not to pay their dues to him. So, the respondent began beating her, and his mother and Sivamma also joined in this ill-treatment. She and her son were not given proper food and were finally beaten and driVen out of the house on 24th September, 1947. She filed a criminal complaint against him regarding that. She alleged that she and her son were doing cooly and eking out their livelihood. She added that the respondent was worth a lakh of rupees but had concealed his gold and cash and valuables in order to defeat her rights for maintenance and her son’s rights for partition and maintenance. P.W.2, the father of the respondent’s fourth wife, supported the petitioner’s story regarding Pullanna being the respondent’s son and the respondent having a lakh of rupees, and the petitioner’s leaving the respondent’s house about September, 1947. So did P.W.5 the respondent’s sister’s husband and P.Ws. 3 and 4, big ryots of the village.

The respondent admitted the petitioner’s marriage to him, but said that she left him some three years after the marriage, and that he never beat or ill-treated her or refused proper food to her. He was supported by a washerman and some other witnesses examined on his behalf. He alleged that he was not the father of Pullanna, and that Pullanna was born to the petitioner by some paramour of hers. So he denied his liability to maintain the petitioner or Pullanna. The lower Court found that the allegation regarding the beating, starvation and physical cruelty by the respondent had not been proved, and, so, dismissed the petition, though it found the marriage to be true. It considered, rather curiously and, of course, erroneously, that the conclusive presumption, under section 112 of the Indian Evidence Act, in favour of Pullanna’s being the son of the respondent, was one which only a Civil Court trying a maintenance suit should draw and not a Criminal Court hearing a petition under section 488 of the Code of Criminal Procedure. So it dismissed the petition. Hence this revision petition.

The learned counsel for the petitioner urged that there was “legal cruelty” in this case sufficient to entitle the petitioner to live apart from her husband, the respondent, and yet claim maintenance, since the respondent had attributed immorality to her deliberately and falsely. He urged also that, under section 112 of the Indian Evidence Act, Pullanna must be presumed to be the respondent’s son and given the maintenance due to him under section 488 of the Code of Criminal Procedure as a “child”. I agree. Deliberate attribution of immorality falsely to a wife by a husband has been held in this country, more than 2,000 years ago, by Chanakya the Prime Minister of the Mauryas, to be “legal cruelty” sufficient to entitle the wife to live separately from her husband and yet claim maintenance, though Chanakya was of opinion that a slight beating of the wife or cessation of conjugal relations with her during long periods of Deeksha (religious vows) would not amount to “legal cruelty” sufficient to entitle her to