Decided on December 18,1967

GEORGE Appellant


- (1.) THIS reference is by the sessions judge of Quilon recommending the cancellation of the order of maintenance passed by the Sub divisional Magistrate, Adoor in M. C. 23 of 1966 on the file of his court. The petitioner in the M. C. is one Saramma Podiyamma alias Rahelama who stated that she was married by the counter-petitioner according to the customary rites obtaining in their community, on 7--10-1131. They lived together till Makaram 1134. Thereafter the counter-petitioner left the station in connection with his employment and refused to maintain her. In spite of mediation by respectable neighbours he continued to neglect her. He gets a monthly pay of Rs. 250/-from the Neyveli Project where he is employed. Besides, he gets Rs. 500/-annually, from his properties. The counter petitioner in his written statement admitting the petitioner's status as wife contended that she had abandoned him of her own free will. She also filed a suit in the Sub Court, Mavelikara against him and his parents, for the return of dowry, the value of ornaments misappropriated and also for her maintenance. The suit was compromised by agreement of parties and on payment of a lump sum Of Rs. 1500. To evidence the payment of this amount a registered receipt was taken. In the registered document which was marked Ex. D2, she had expressed her desire to terminate the alliance, and that suit was decreed in terms of the compromise. By the execution of Ext D2, the relationship of husband and wife had ended. He is, therefore, not bound to maintain her. The learned Sub Divisional Magistrate has held that in spite of ext. D2 the marital relationship subsists and he has accordingly allowed the petition and directed the counter-petitioner to pay maintenance to the petitioner at the rate of Rs. 15/-per mensem.
(2.) THE learned Sessions Judge's Quilon has pointed out in his order of reference that the parties are now living apart by mutual consent evidenced by Ex-D2 and therefore she is not entitled to claim maintenance and the order should be quashed. THE matter was heard by me at some length and I am satisfied that the reference has to be accepted and the order of the Sub divisional Magistrate vacated S. 488 (4) Cr. P. C. applies to the facts of the present case and from the conduct of the parties it must be inferred that they are living separate by mutual consent or arrangement. S. 488 (4) reads: " (4) No wife shall be entitled to receive an allowance from her husband under this 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. " The fact cannot be denied that they are now living separate. Ex-D2 is a registered receipt executed by the petitioner in favour of the counter-petitioner's father, in which she has stated that she has no intention of continuing her alliance with the counter-petitioner as husband and wife. To extract the statement: The purpose for which this document was executed was to compromise the suit that she had filed in the Sub Court at Mavelikara. The suit, as already stated, was for dowry amount, ornaments alleged to have been taken away by the husband and for her maintenance. It was in full settlement of these three claims that Ex. D2 was executed. The intention on her part to live away from the husband once for all, is clearly seen reflected in the above quoted statement in Ext. D2. A wife who agrees to live separately, forfeits her claim for, maintenance for ever and she cannot subsequently come forward and claim it on the ground that the marriage subsists for all legal purposes. The petitioner's contention is that only by mutual consent her right to maintenance could be forfeited; but in the present Case the husband has not given his consent to live a part. In other words, Ex-D2 does not evidence mutual consent it is inly a unilateral agreement so far as the wife is concerned I fail to see any point in the contention. The contention is unrealistic and cannot at all be countenanced in the face of the clear expression of the petitioner's intention to live apart, made in Ex. D2 and which has been acquiesced in by the husband. All that is needed under S. 488 (4) is the desire on the part of the couple to live apart. Ex-D2 was executed to the husband's father at a time when the husband was away in Neyveli in connection with his job. The document was taken by the father on his behalf and the intention indicated in the document must be taken as intention indicated to the father as his agent. The petitioner cannot wriggle out of it saying that the husband is not a party to the document. The section does not contemplate written consent. It is enough that consent or approval is indicated by conduct. In the present case, as already stated, the offer to live apart made by the wife was accepted by the husband and thus it has assumed the character of a binding agreement. In the suit itself she had claimed maintenance and it was in settlement of that claim also that Ex-D2 was executed on payment, of a lump sum consideration to her. She is virtually estopped by that conduct from claiming maintenance from the counter-petitioner. "mutual consent would apply to separate living if such separate living was the result of a desire of both parties. This desire should be based on the volition of both the parties without any element of impelling compelling circumstances" (Vide Mukand Lal v. Jyotishmati AIR. 1958 Punj. 390) "mutual consent as used in the sub-section means a consent on the part of the husband and the wife to live apart no matter what the circumstances may be. The test to find out whether the husband and wife are living apart by mutual consent is to see whether the agreement of separate living and payment of maintenance was the outcome of the desire of both parties independently reached by them. " (Vide Saudagar Ram v. Jiwan Bai AIR. 1958 punj. 431) Here the petitioner has no case that the consent was not given voluntarily and that the husband's father had betrayed her. All that she now pleads is that technically the requirement of S. 488 sub-section (4) has not been satisfied. The husband can claim exoneration from payment of maintenance, only on proof of mutual consent to live apart, and so long as ex-D2 stands as a. unilateral agreement, the, husband cannot claim protection thereunder. The fallacy of this argu-ment lies in the fact, that for the section to apply the husband's consent should be in writing. It is enough if he approves of the wife's" desire to live away from him; and that approval he has given in the present case also. It is after 4 years of separation that she has come forward to claim maintenance. In the circumstances obligation to maintain her. Right to maintain springs from the husband's enjoyment of the society and services of his wife and not merely from an empty or ornamental status as wife conferred by law. A wife living away cannot be made to dictate to the husband that he should maintain her since she is legally the wife; such arrogance should be condemned as it is against public policy and out of tune with modern tendencies of social life, however, strong "the fling of sentimentalism of the glow of chivalry be," in support of it. The reference is hence accepted and the order of maintenance passed by the Sob Divisional Magistrate is set aside.;

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