Bodanapu Khadaraiah vs Bodanapu Siddamma and Another

B.K. Somasekhara, J.—This is a defendant''s appeal. Defendant No. 1 has challenged the judgment and decree passed by the learned Sub Judge, Cuddapah in OS. No. 12/1979 dated 6-2-1982 decreeing the suit in favour of the plaintiff who is respondent No. 1 herein. The appeal is resisted by respondent No. 1. The reference to parties as plaintiff and defendants as they were styled in the trial Court would be convenient. It will be done accordingly.

The plaintiff filed the suit for recovery of maintenance at he rate of Rs. 500/- per mensem from defendant No. 1,, for arrears of maintenance at Rs. 18,000/- for three years prior to the suit against him, for a charge of 1/4th share of the 1st defendant in plaint-A schedule properties and for such other reliefs as the Court deemed fit in the circumstances of the case. The properties described in plaint-A schedule are as many as 25 agricultural lands situate in Dalavayipalli village of Cuddapah district. The items mentioned in plaint-B schedule are movable properties comprising gold, silver and iron safe and utensils. The items mentioned in plaint-C schedule are sarees etc. Defendant No. 1 resisted the suit on various grounds but defendant No. 2 did not resist the suit.

The plaintiff is the first wife of defendant No. 1. She married him about 30 years prior to the suit. Defendant No. 2 is said to be the son of the plaintiff born through defendant No. 1. The plaintiff pleaded that within a short time after she joined defendant No. 1 due to the marriage wedlock, he developed hatred and started ill-treating her. He also married a second wife about 25 years prior to the date of the suit and took back all the jewellary from her and gave them to the second wife. Due to instigation of the second defendant (sic. wife) also, it is pleaded that the 1st defendant used to illtreat the plaintiff. It is further pleaded that the mother of defendant No. 1 and the second wife of the defendant also ill-treated the plaintiff. The plaintiff had alleged that the 1st defendant started complaining against the 2nd defendant to the police on various reasons unsuccessfully. Ultimately it appears that the plaintiff and the 2nd defendant who were driven out of the house by the 1st defendant, lived at Anantampalli which is at a distance of about 1� miles away from the village Dalavayipalle and later on returned to the village. Therefore, the plaintiff has pleaded that the defendant No. 1 has neglected to maintain her and her son because of his cruel and improper conduct. It is further leaded that the 1st defendant owns immovable and movable properties as described in the Plaint 1, B and C schedules and his annual income is about Rs. 20,000/- to Rs. 30,000/-and that he also served as an Upa Sarpanch of Dalavayipalli Panchayat and that he is capable of maintaining the plaintiff and that she is maintaining herself with the assistance of defendant No. 2 who is come of age. As a whole, she wanted a decree as prayed for. The plaintiff has pleaded that she and defendant No. 1 belongs to Doodekula community and are governed by Hindu Law.

Defendant No. 1 denied the plaint allegations and in particular the alleged cruel treatment by him towards the plaintiff, his driving her out from the house and the village and the plaintiff maintaining herself with the assistance of defendant No. 2. He disowned defendant No. 2 as his son born to the plaintiff. Plaintiff and defendant No. 2 belong to Hindu Community whereas the 1st defendant is govered by Muslim Law. Defendant No. 1 pleaded that he has got five children born to him through the second wife-Peeramma and that he does not own properties and that therefore, he cannot afford to provide separate maintenance to the plaintiff at the rate of Rs. 500/- per mensem. However, he contended that the plaintiff herself deserted him after few months of the marriage and entered into a divine order and developed her own circle of friends and that therefore, the suit is not maintainable.

On the basis of the pleadings, the trial Court settled the following issues.

(1) Whether the parties are governed by Hindu Law or Muslim Law?

(2) Whether the plaintiff is entitled to maintenance and if so, to what amount?

(3) Whether the claim of the plaintiff for maintenance is barred by time?

(4) What are the properties on which charge can be created?

(5) To what relief?

During the trial, the plaintiff examined herself as P.W.I and two witnesses as per P.Ws.2 and 3 and got marked Ex. A-1 by way of documentary evidence. On behalf of defendants, defendant No. 1 examined himself as D.W.3 and examined as many as 7 witnesses as per D.Ws. 1, 2 and 4 to 7 and got marked the documents as per Exs. B-1 to B-26.

The learned Sub Judge after hearing both sides and on the material placed before him decreed the suit.

In this appeal the 1st defendant has challenged the correctness and legality of the findings of the learned Sub Judge and also the judgment and decree on the basis of as many as 12 grounds which in effect has challenged the whole matter and in particular the basis on which the liability of defendant No. 1 to pay maintenance is fixed and the quantum of maintenance as fixed is also challenged.

The following points arise for consideration:

(1) Whether the findings of the learned Sub Judge on the issues are correct

(a) if so, on which of the issues and to what extent?

(2) Whether the judgment and decree of the learned Sub Judge deserve to be interfered by this Court?

(a) if so, to what extent?

(3) Whether the judgment and decree of the learned Sub Judge are liable to be set aside?

(a) if so, to what order?

The learned Sub Judge while disposing of issue No. 1 has come to the conclusion that the parties in the suit are governed by Muslim law and not by Hindu Law. During the course of arguments, this part of the finding was not seriously challenged by either of the parties. Moreover, the ample evidence in the case shows that although the parties to the suit are called by Hindu names and may follow certain practices of the members belonging to Hindu community, they belong to Muslim community. P.W.I has admitted that her marriage was performed as per the practices in Muslim community. In particular, the plaintiff has admitted in her testimony that her marriage was performed by a Khaja, Rs. 120/- was fixed as Mehr amount and circum scission was performed on defendant No. 1 etc. She has further admitted that the persons belonging to her family are observing Mohurrum also. Defendant No. 1 has also emphatically testified that he is a Muslim and the members of the family are not following any practices of the members belonging to Hindu community. The learned Sub Judge has given adequate reasons to come to the conclusion that the parties to the suit are Muslims and are governed by Muslim Law. This Court finds no other reason to differ from the finding of the learned Sub Judge. Therefore, the finding on issue No. 1 deserves to be affirmed.

The plaintiff has testified about the manner in which she was treated by defendant No. 1 after the marriage. In substance, it appears that after the marriage plaintiff and defendant No. 1 lived together when the plaintiff was illtreated by defendant No. 1, his mother etc. It is also in evidence that he married for the second time one Peeramma and the ill-treatment continued till the plaintiff was driven out of the marital house along with defendant No. 2. It is also in evidence that defendant No. 1 had several allegations against the plaintiff and defendant No. 2 and he was filing police complaints etc., in haste. The learned Sub Judge was not convinced of the evidence about the cruelty on the part of defendant No. 1 as against the plaintiff, in the sense, that he was beating her etc., or that she was (sic. he) treating in a manner as stated in the plaint. However, he came to the conclusion that notwithstanding such a proof, the conduct of defendant No. 1 in suspecting the chastity of the plaintiff by insinuating that defendant No. 2 was born to some other person, amounts to legal cruelty. The learned Sub Judge appears to be right in this regard. Defendant No. 1 has categorically denied that Defendant No. 2 is his son thereby attributing adultery to the plaintiff. He repeated the same in his evidence also. Admittedly such an allegation is not proved by defendant No. 1. In view of the mandatory implication of Section 112 of the Evidence Act, the legitimacy of defendant No. 2 as a son born to defendant No. 1 through plaintiff should be conclusively accepted as proved. There is no plea by defendant No. 1 that there was no continuity in their marital life. Although the 1st defendant pleaded that there was no access between him and the plaintiff for a long time after a short spell of close living together, that is not satisfactorily established. On the other hand, it is categorically stated by the plaintiff in the plaint that she lived in a village at a distance of about 1 1/2 miles from the place of defendant No. 1 and she even returned to the village after some time which is not seriously disputed. On the face of it, defendant No. 1 had access to the plaintiff. Burden of proving want of access, by virtue of Section 112 of the Evidence Act, was on defendant No. 1 which he did not discharge. It appears that the legal implication of Section 112 of the Evidence Act regarding the access or non-access is not actual physical access etc., but mere opportunity to have access, is sufficient, vide Chilukuri Venkateswarlu Vs. Chilukuri Venkatanarayana, . The fact that defendant No. 1 had access to the plaintiff stands proved as it is not the case of the 1st defendant that he was prevented from access and thereby the legitimacy of defendant No. 2 as the son of defendant No. 1 through the Plaintiff should be conclusively taken as established by virtue of the mandatory provision of Section 112 of Evidence Act The law appears to be that the burden of showing that the parties to the marriage have no access to each other is on the person who challenges the legitimacy of a child. Defendant No. 1 has miserably failed to discharge that burden to any extent muchless to the extent of shifting the. burden on to the plaintiff. The law appears to be settled that in the absence of evidence of non-access, the child must be deemed to be legitimate even though the wife was living apart and leading an unchaste life, vide T. Krishnappa and Another Vs. T. Venkatappa and Others, . The law also appears to be settled that such a rule of legitimacy being rule of procedure is applicable to Mohammadans also, In Mt. Sampatia Bibi and Another Vs. Mir Mahboob Ali and Another, it has been held that Section 112 of the Evidence Act applies to all classes of persons in the country and no exception is made in favour of Muslims. Pressing the settled rule into service, this Court is convinced that although the legitimacy of defendant No. 2 as between plaintiff and defendant No. 2 was not in doubt, defendant No. 1 unnecessarily raised such an allegation thereby attributing unchastity to the plaintiff to the extent of exposing her to the insinuation of adultery. In such a situation, the law appears to be that attribution of unchastity or adultery to a wife without justification or proof, amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the question of claim of maintenance.

It has been held in catena of precedents that constant insults, abuses and accusations of adulterous character which make married life impossible to be endured, constitute mental cruelty of a kind worse than physical violence. This Court thus concludes that unjustifiably attributing unchastity or adultery to a wife by a husband, amounts to cruelty entitling the wife to live separately without forfeiting her right to claim separate maintenance. Therefore, the learned Sub Judge was right in concluding that the plaintiff was entitled to seek separate maintenance from defendant No. 1 on the ground of establishing legal cruelty by him towards her.

The learned Sub Judge is also justified in awarding maintenance on the ground that defendant No. 1 contracted second marriage with one Peeramma as his second wife. As the parties are governed by Muslim Law it must be examined whether the law enjoins upon the husband to provide separate maintenance to the wife when he contracted second marriage. The law appears to be in the positive in such a situation. In Badruddin v. Aisha Begum, 1957 All.L.J. 300, it has been emphatically noted that where the husband has married another wife, or keeps a mistress, the wife may refuse to live with her husband and still claim maintenance (vide page 236 of Mohomedan Law by M. Hidayatullah, 19th Edition). Therefore, notwithstanding any other consideration of proof or otherwise, for the purpose of establishing the claim for maintenance, the plaintiff is, as of right, entitled to get separate maintenance from the 1st defendant when he married Peeramma admittedly for the second time during the subsistence of marriage with the plaintiff.

The learned Sub Judge has awarded Rs. 200/- per month to the plaintiff towards maintenance although Rs. 500/- was claimed. Since there are no cross objections and since the question is not agitated on behalf of the plaintiff, that matter can be taken as concluded in so far as the plaintiff is concerned. The learned Advocate for defendant No. 1 Miss. Nanda has seriously contended that the quantum of maintenance fixed by the learned Sub Judge is exorbitant and at any rate not passed on evidence in the case and oppressive as against defendant No. 1 who can ill-afford to provide so much of amount. This Court is not persuaded to accept such a contention to any extent. Both from the pleadings and the evidence it is clear that defendant No. 1 is not only a man of status in the village having served as Upa-Sarpanch, but also a man of financial stability and soundness. Admittedly he owns atleast some of the immovable properties mentioned in plaint-A schedule in addition to movable property mentioned in plaint B and C schedules. Even according to his own admission, he owns valuable immovable properties. Although he has stated that one of his brothers has got a share and that he has disposed of properties, it is very clear that he can afford to provide maintenance at the rate of Rs. 200/- per month to the plaintiff, as rightly held by the learned Sub judge. The amount required for the maintenance of the plaintiff in these hard days of struggling for existence, need not be over-emphasised. An individual with the barest requirement for food, clothing, residence etc., may need atleast Rs. 10/- per day. Even the maximum austerity cannot reduce such a requirement. A separate maintenance for residence etc., is something different from the joint living when so many members in the family can manage to live somehow and share the common food and shelter to economise the requirement. A separate maintenance for food, shelter, clothing etc., is quite different. In that view of the matter, the amount of Rs. 200/- per month awarded to the plaintiff towards maintenance, in the considered opinion of this Court, is too meager when compared to the actual requirement. Therefore, this Court finds no reason to interfere with the finding of the learned Sub Judge in this regard.

In view of the above/there is no reason to interfere with the relief of charge created on the properties of defendant No. 1 as prayed for in the plaint. Thus the findings on all the issues are correctly recorded based on evidence and sufficient reasons and they need no interference by this Court.

The only question which remains to be considered is about costs. On face of it, defendant No. 1 had agitated the matter for long ignoring his legal and moral obligation to maintain the plaintiff when he had the pleasure of having one more wife and properties of his own. Normally in the case of litigation between close relatives, costs may not be awarded. But this is a peculiar case wherein this Court cannot depart from the normal rule that costs follow the event.

As a whole, neither the judgment nor the decree of the trial Court warrant interference by this Court to any extent and they deserve to be confirmed in their entirety.

In the result, the appeal is dismissed with costs of respondent No. 1 (defendant No. 1) throughout.