Pellakuru Syamalamma Vs. Pellakuru Sambaiah and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - the trial court after considering the contentions of both sides held that the petitioners are entitled for maintenance and awarded maintenance to the petitioner as well as daughter i. it can be very effectively said that the husband has no right to ask the wife to come and live with him as the wife has a right to live separately when the husband has married another woman or kept a mistress. clearly refers that a wife has a right to live separately when the husband has married another lady or keeps a mistress.orderbhaskar rao, j.1. crl. r.c. no. 489 of 1987 is filed by the petitioner-wife against the judgment in crl. r.p. no. 1 of 1986 on the file of the sessions judge, nellore division, nellore. crl. petition no. 934/87 is filed by the petitioner-husband, who is respondent in crl. r.c. no. 489/87 against the awarding of maintenance to the daughter.2. the facts of the case are that the petitioner in crl. r.c. no. 489/87 was married to the respondent therein by name sambaiah. she got a daughter through sambaiah by name lakshmi. it is the further case of the petitioner that the respondent has kept one parameshwaramma as mistress and got children through her and completely neglected to maintain her and her daughter since 1980 onwards. therefore, they filed a petition under section 125 crl. pc. for grant of: maintenance of rs. 250/ per month each. the petitioners examined p.ws. 1 to 3 and got exs. p. 1 to p7 marked. the respondent examined r.ws. 1 to 3 and got exs. rl to r6 marked on his behalf. it is the case of the respondent-husband that he actually married the said parameswaramma with the consent of the petitioner and through parameswaramma he got seven children and he is maintaining them all. it is his further case that he never neglected to maintain the petitioner and her daughter and, therefore, there is no cause of action for filing the present petition. the trial court after considering the contentions of both sides held that the petitioners are entitled for maintenance and awarded maintenance to the petitioner as well as daughter i.e. both the petitioners in the maintenance case. against that order, the respondent husband filed a revision before the sessions judge, nellore. the learned sessions judge, nellore modified the order of the trial court holding that merely because the husband has married the second wife, it cannot automatically be said that the first wife is entitled for maintenance under section 125(3) crl. p.c. though a right to live separately is provided under section 125(3) crl. p.c. and, therefore, the wife is not entitled for maintenance. however, the learned sessions judge confirmed the order of the trial court with regard to the award of maintenance to the daughter. against that order, the present two revisions are filed3. the learned counsel appearing for the petitioner-wife has contended that even as per the finding of the lower courts, the respondent husband is residing with his second wife parameswaramma and has got seven children through her. once the respondent is residing with another lady as his second wife, the petitioner being his legally wedded wife is entitled to live separately as per explanation to sub-section (3) of section 125 crl. p.c. and there is obligation on the part of the husband to provide maintenance to the petitioner and it is not the case of the respondent husband that he is paying any maintenance to the petitioner or providing any other futilities for her maintenance. the learnda counsel further contends that mere offer of the husband that he is ready to maintain the wife if she comes and lives with him cannot be said that there is no negligence on the part of the husband. therefore, the petitioner wife is entitled for maintenance.4. the learned counsel for the respondent-husband has contended that the; respondent has married the second wife with the consent of the petitioner and after marriage the petitioner lived for some time and went away. the respondent is always ready to maintain her and therefore it cannot be said that there is negligence on the part of the husband. therefore, the lower appellate court was right in rejecting the maintenance to the wife. it is next contended by the learned counsel that even granting of maintenance to the daughter is not correct and legal and therefore the respondent husband filed the revision against that order.5. in view of the above contentions raised by both the learned counsel, the point to be decided in this case is whether the wife is entitled to live separately as laid down in explanation to sub-section (3) of section 125 cr. p.c. and if so whether she is entitled for maintenance without further proof of negligence on the part of the husband when he is residing with another lady or another wife.6. as per the facts of the case, both the courts below that the petitioner is the legally wedded wife of the respondent husband and the daughter was born to the petitioner is the daughter of the respondent. it is also held by the courts below that the respondent has married again parameswaramma and is living with her and got seven children through her. these are the facts proved in the case by the evidence on record. it is at this stage necessary to refer to the explanation of sub-section (3) of section 125 cr. p.c. which reads as under;explanation: if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.as per the above explanation if the husband marries another lady or keeps a mistress, it is a just ground for the wife to refuse to live with the husband. that means a wife has a right to live separately from the husband when the husband has married another lady. it can be very effectively said that the husband has no right to ask the wife to come and live with him as the wife has a right to live separately when the husband has married another woman or kept a mistress. thus, there is a legal.right available to the wife to live separately and there is therefore obligation on the husband to maintain her until she and her husband remain as such or even after divorce till the wife remains unmarried. the specific language of section 125 cr. p.c. is to the effect that right to maintenance is provided to a divorced wife until she remarries. the section further provides a right to the wife to live separately when her husband marries another woman or keeps a mistress. therefore, when once the wife proves that her husband has married another lady or keeps a mistress, the wife has got a right to claim maintenance unless the husband proves that he is maintaining her by paying something in kind or cash. here it is necessary to refer to the decisions in deochand v. state of maharashtra : 1974crilj1089 and subanu alias saira banu v. a. m. abdul gafoor : 1987crilj980 . in the above decisions of the supreme court, it is held that the explanation to sub-section (3) of section 125 cr. p.c. clearly refers that a wife has a right to live separately when the husband has married another lady or keeps a mistress. therefore, it is a settled law.7. now the question is whether the wife is entitled for maintenance without further proof of negligence on the part of the lusband. i hold that once the wife proves that the husband has married another lady and is living with her and she is residing separately she is entitled to claim maintenance without further proof of negligence unless the husband proves that he is maintaining her by paying something in kind or cash. that is not the case of the respondent husband in the present case.' though it is submitted at the time of arguments that the husband has given some land to the petitioner-wife, there is no such evidence on record and even it was submitted by both the learned counsel that the said land is in the possession of the husband. therefore, there is no evidence on record to show, that the husband is maintaining the wife.in view of the above circumstances, i hold that as per the explanation to sub-section (3) of section 125 cr. p.c. the wife is entitled for the maintenance once she proves that the husband has married another woman or kept a mistress without further proof of any negligence or ill-treatment on the part of the husband unless the husband proves that he is maintaining the wife by paying something in kind or cash. therefore, the petitioner-wife is entitled for maintenance. accordingly criminal r.c. 489 of 1987 is allowed and the maintenance prayed for at the rate of rs. 250/- per month is awarded to the petitioner wife from the date of petition. however, this will not bar the parties to agitate their rights before the civil courts.8. regarding criminal r.c. 934 of 1987 it has to be stated that both the courts below have found that the respondent pellakuru lakshmi is the daughter of p. sambaiah, the petitioner herein through his first wife. both the courts have considered the entire evidence on record and awarded maintenance to the respondent-daughter. i see no ground to interfere with the order. therefore cri. p.934/87 is dismissed.

Judgment:
ORDER

Bhaskar Rao, J.

1. Crl. R.C. No. 489 of 1987 is filed by the petitioner-wife against the judgment in Crl. R.P. No. 1 of 1986 on the file of the Sessions Judge, Nellore division, Nellore. Crl. Petition No. 934/87 is filed by the petitioner-husband, who is respondent in Crl. R.C. No. 489/87 against the awarding of maintenance to the daughter.

2. The facts of the case are that the petitioner in Crl. R.C. No. 489/87 was married to the respondent therein by name Sambaiah. She got a daughter through Sambaiah by name Lakshmi. It is the further case of the petitioner that the respondent has kept one Parameshwaramma as mistress and got children through her and completely neglected to maintain her and her daughter since 1980 onwards. Therefore, they filed a petition under Section 125 Crl. PC. for grant of: maintenance of Rs. 250/ per month each. The petitioners examined P.Ws. 1 to 3 and got Exs. P. 1 to P7 marked. The respondent examined R.Ws. 1 to 3 and got Exs. Rl to R6 marked on his behalf. It is the case of the respondent-husband that he actually married the said Parameswaramma with the consent of the petitioner and through Parameswaramma he got seven children and he is maintaining them all. It is his further case that he never neglected to maintain the petitioner and her daughter and, therefore, there is no cause of action for filing the present petition. The trial court after considering the contentions of both sides held that the petitioners are entitled for maintenance and awarded maintenance to the petitioner as well as daughter i.e. both the petitioners in the maintenance case. Against that order, the respondent husband filed a revision before the Sessions Judge, Nellore. The learned Sessions Judge, Nellore modified the order of the trial Court holding that merely because the husband has married the second wife, it cannot automatically be said that the first wife is entitled for maintenance under Section 125(3) Crl. P.C. though a right to live separately is provided under Section 125(3) Crl. P.C. and, therefore, the wife is not entitled for maintenance. However, the learned Sessions Judge confirmed the order of the Trial court with regard to the award of maintenance to the daughter. Against that order, the present two revisions are filed

3. The learned Counsel appearing for the petitioner-wife has contended that even as per the finding of the lower courts, the respondent husband is residing with his second wife Parameswaramma and has got seven children through her. Once the respondent is residing with another lady as his second wife, the petitioner being his legally wedded wife is entitled to live separately as per explanation to Sub-section (3) of Section 125 Crl. P.C. and there is obligation on the part of the husband to provide maintenance to the petitioner and it is not the case of the respondent husband that he is paying any maintenance to the petitioner or providing any other futilities for her maintenance. The learnda counsel further contends that mere offer of the husband that he is ready to maintain the wife if she comes and lives with him cannot be said that there is no negligence on the part of the husband. Therefore, the petitioner wife is entitled for maintenance.

4. The learned Counsel for the respondent-husband has contended that the; respondent has married the second wife with the consent of the petitioner and after marriage the petitioner lived for some time and went away. The respondent is always ready to maintain her and therefore it cannot be said that there is negligence on the part of the husband. Therefore, the lower appellate court was right in rejecting the maintenance to the wife. It is next contended by the learned Counsel that even granting of maintenance to the daughter is not correct and legal and therefore the respondent husband filed the revision against that order.

5. In view of the above contentions raised by both the learned Counsel, the point to be decided in this case is whether the wife is entitled to live separately as laid down in explanation to Sub-section (3) of Section 125 Cr. P.C. and if so whether she is entitled for maintenance without further proof of negligence on the part of the husband when he is residing with another lady or another wife.

6. As per the facts of the case, both the courts below that the petitioner is the legally wedded wife of the respondent husband and the daughter was born to the petitioner is the daughter of the respondent. It is also held by the courts below that the respondent has married again Parameswaramma and is living with her and got seven children through her. These are the facts proved in the case by the evidence on record. It is at this stage necessary to refer to the explanation of Sub-section (3) of Section 125 Cr. P.C. which reads as under;

Explanation: If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

As per the above explanation if the husband marries another lady or keeps a mistress, it is a just ground for the wife to refuse to live with the husband. That means a wife has a right to live separately from the husband when the husband has married another lady. It can be very effectively said that the husband has no right to ask the wife to come and live with him as the wife has a right to live separately when the husband has married another woman or kept a mistress. Thus, there is a legal.right available to the wife to live separately and there is therefore obligation on the husband to maintain her until she and her husband remain as such or even after divorce till the wife remains unmarried. The specific language of Section 125 Cr. P.C. is to the effect that right to maintenance is provided to a divorced wife until she remarries. The section further provides a right to the wife to live separately when her husband marries another woman or keeps a mistress. Therefore, when once the wife proves that her husband has married another lady or keeps a mistress, the wife has got a right to claim maintenance unless the husband proves that he is maintaining her by paying something in kind or cash. Here it is necessary to refer to the decisions in Deochand v. State of Maharashtra : 1974CriLJ1089 and Subanu Alias Saira Banu v. A. M. Abdul Gafoor : 1987CriLJ980 . In the above decisions of the Supreme Court, it is held that the explanation to Sub-section (3) of Section 125 Cr. P.C. clearly refers that a wife has a right to live separately when the husband has married another lady or keeps a mistress. Therefore, it is a settled law.

7. Now the question is whether the wife is entitled for maintenance without further proof of negligence on the part of the lusband. I hold that once the wife proves that the husband has married another lady and is living with her and she is residing separately she is entitled to claim maintenance without further proof of negligence unless the husband proves that he is maintaining her by paying something in kind or cash. That is not the case of the respondent husband in the present case.' Though it is submitted at the time of arguments that the husband has given some land to the petitioner-wife, there is no such evidence on record and even it was submitted by both the learned Counsel that the said land is in the possession of the husband. Therefore, there is no evidence on record to show, that the husband is maintaining the wife.

In view of the above circumstances, I hold that as per the explanation to Sub-section (3) of Section 125 Cr. P.C. the wife is entitled for the maintenance once she proves that the husband has married another woman or kept a mistress without further proof of any negligence or ill-treatment on the part of the husband unless the husband proves that he is maintaining the wife by paying something in kind or cash. Therefore, the petitioner-wife is entitled for maintenance. Accordingly Criminal R.C. 489 of 1987 is allowed and the maintenance prayed for at the rate of Rs. 250/- per month is awarded to the petitioner wife from the date of petition. However, this will not bar the parties to agitate their rights before the civil courts.

8. Regarding Criminal R.C. 934 of 1987 it has to be stated that both the courts below have found that the respondent Pellakuru Lakshmi is the daughter of P. Sambaiah, the petitioner herein through his first wife. Both the courts have considered the entire evidence on record and awarded maintenance to the respondent-daughter. I see no ground to interfere with the order. Therefore Cri. P.934/87 is dismissed.