B.R. Rangaraju vs D.L. Chandramma

B. Veerappa, J.—The unsuccessful husband-defendant has filed the above MFA against the judgment and decree dated 21.06.2010 passed in O.S. No. 34/2003 on the file of the II Addl. Principal Judge, Family Court, Bangalore.

For the sake of convenience the parties are referred to as per their ranking before the Family Court.

The brief facts of the case are that the 1st plaintiff-wife filed O.S. No. 34/2003 against the defendant for awarding maintenance at the rate of Rs. 1,000/- per month for a period of three years and monthly maintenance of Rs. 3,500/- per month from the date of the petition alleging that the 1st plaintiff married the defendant as per the Hindu Customs and Rights on 11.5.1977 at Vakkaligara Sarvaganika Vidyarti Nilaya, Channapattana. After the marriage between the plaintiff and defendant, 2nd plaintiff was borne out of their wedlock on 14.9.1997 and they were happy for a period of two years and thereafter the defendant started ill-treating the plaintiff by abusing her in filthy and vulgar language, he used to beat her for no fault of her, the defendant used to send her out of the house. The plaintiff tolerated the ill-treatment thinking that the defendant may mend his behaviour in future, inspite of the same the defendant has not changed his behaviour and in the year 1984 the defendant without any reason sent the plaintiff and her daughter out of house, and in spite of holding many panchayat and advise by the elders in the family the defendant did not take the plaintiff and her daughter to the matrimonial home and therefore, the plaintiffs have no option except to stay in the paternal house of the 1st plaintiff and also contended that the plaintiffs have no income and they are unable to maintain themselves. The defendant is working in BEL as a permanent employee and he is drawing salary of Rs. 10,000/- per month and he has neglected to maintain the plaintiffs. Therefore, the plaintiffs filed the suit.

Though the defendant appeared through Advocate, did not file any written statement.

Based on the pleadings the Trial Court framed the following issues:--

"1. Whether plaintiff proves that plaintiff No. 1 is the legally wedded wife of the defendant and plaintiff No. 2 is the daughter born out of the said wedlock?

Whether plaintiff proves that they are unable to maintain themselves?

Whether plaintiff proves that defendant though he is capable of maintaining the plaintiffs as neglected to maintain them?

Whether the plaintiffs are entitled for past maintenance at the rate of Rs. 1,000/- per month for a period of three years?

Whether plaintiffs are entitled for the maintenance, if so at what rate?"

In order to establish her case, the plaintiff examined herself as P.W. 1 and witness as P.W. 2 and marked documents Exs. P.1 to P.7. The defendant examined himself as D.W. 1 and marked the document Ex. D.1.

After considering the material on record, the Trial Court recorded a finding that the 1st plaintiff has proved that she is the legally wedded wife of the defendant and 2nd plaintiff is the daughter borne out of the wedlock and also proved that the plaintiffs are unable to maintain themselves and defendant though is capable of maintaining the plaintiffs has neglected to maintain them. Accordingly, the Trial Court declared that the 1st plaintiff is entitled to past maintenance at the rate of Rs. 1,000/- per month for three years immediately, prior to filing of suit and Rs. 2,000/- per month from the date of petition. Against the said judgment and decree, the present appeal is filed.

We have heard the learned counsel for the parties to the lis.

Sri Swamy Shivaprakash, learned counsel appearing for the appellant has contended that the Trial Court erred in holding that the appellant has not filed any written statement and he has stated that the petition filed by the respondents contained both plaint and the petition under Order 37 Rule 1 of CPC and in the said petition the appellant has filed detailed statement of objections and also contended that the Trial Court committed an error in holding that the appellant married the respondent on 11.5.1977, when he has taken specific contention that he has not married the respondent. The Trial Court has believed all the documents produced by the respondent and disbelieved the documents produced by the appellant, thereby the impugned judgment and award passed by the Trial Court cannot be sustained, hence prays to allow the appeal.

Per contra, Sri B.L. Sanjeev, learned Counsel for the respondent sought to justify the impugned judgment and award of the Trial Court. The contention of the appellant that he has not married the 1st respondent; that he has filed the written statement denying the plaint averments cannot be accepted, since no material document is produced before the Trial Court to prove that the appellant has filed the written statement.

In the light of the aforesaid contentions the point that arise for our consideration is:

"(1) Whether the finding of the Family Court that the 1st plaintiff is the lawfully wedded wife of the respondent calls for interference?

(2) Whether the award of maintenance to the plaintiff is valid or not?"

Ex. P.1 the Invitation Card discloses that the appellant and 1st respondent were married on 11.5.1977. Ex. P.2 discloses that the Tahsildar issued an endorsement dated 10.10.1995 indicating that the 2nd plaintiff - R. Pavitra was born out of the wedlock between the appellant and respondent. Ex. P.3 - Voter list issued by the Asst. Commissioner (Administration), Bengaluru Mahanagara Palike depicts at Sl. No. 515 the name of the appellant and at 516 the name of the respondent - wife of Rangaraju. Ex. P.4 - the SSLC certificate issued by the Karnataka Secondary Education Board depicts the name of the 2nd plaintiff B.R. Pavithra daughter of B.R. Rangaraju. Ex. P.5 depicts the name of the 2nd plaintiff - B.R. Pavithra daughter of Rangaraju which was issued by the Directorate of Education. Ex. P.6 - is the Death Certificate issued by the Government of Karnataka dated 13.7.2003 depicts that the 2nd plaintiff died on 12.7.2003 showing father''s name as B.R. Rangaraju and Ex. P.7 is the legal notice issued by the plaintiff All the said documents Exs. P1 to P7 were issued during the course of the Official duty by the concerned authorities and presumption has to be drawn under Section 114 of the Indian Evidence Act. The genuineness of the said documents are not all challenged or questioned by the appellant. Therefore, it is clear, in view of the said documents, the 1st plaintiff has proved the marriage between the appellant and herself and out of their wedlock 2nd plaintiff was born and accordingly the Trial Court held that the 1st plaintiff is the legally wedded wife of the defendant and 2nd plaintiff was born out of their wedlock and it is the duty of the defendant to maintain the plaintiffs. The appellant has produced Ex. D.1 - the marriage certificate to show that he is married to one Grace Eugene Mascarenhas on 17.01.1974 (much prior to the alleged marriage) issued by Parish Priest of St. Theresa''s Church on 15.6.2000 i.e., subsequent to the petition filed and admittedly the appellant has not examined the author of Ex. D1. The Trial Court has rightly and specifically held that regarding his marriage with one Grace Eugene Mascarenhas, the defendant has produced the marriage certificate Ex. D.1 dated 15.6.2000, though there is a reference mentioned as 3/74, this document has come into existence after filing of the original suit. Apart from this, the defendant has not filed written statement in this case, even though in the cross-examination P.W. 1 has taken the contention that he was married one Grace Eugene Mascarenhas, in his cross-examination in chief he has not adduced the same. Therefore, Ex. D1 cannot be considered as a proof to disbelieve the case of the plaintiffs regarding the marriage between the plaintiff No. 1 and defendant and the paternity of defendant in respect of plaintiff No. 2. Even assuming he has filed statement of objections, the same cannot be taken into consideration, since he has not produced any contra evidence adduced by the plaintiff contrary to documents Exs. P1 to P7.

In view of the evidence of P.Ws. 1 and 2 and Exs. P1 to P7, the alleged marriage of the appellant as per Ex. D1 cannot be considered.

It is also not in dispute that the defendant was working as a permanent employee in BEL and it is specifically stated by the 1st plaintiff both in the pleadings and her evidence that the defendant was earning Rs. 10,000/- per month and the defendant also admitted in his evidence that he was drawing salary of Rs. 8,000/- per month and now he is retired from service. Unfortunately the 2nd plaintiff died during the pendency of the suit. He cannot neglect the 1st plaintiff, but should maintain her. Therefore, taking into consideration the entire pleadings, oral and documentary evidence on record, the Trial Court has decreed the suit granting Rs. 1,000/- per month for three years, immediately prior to filing of the suit and Rs. 2,000/- from the date of suit. The same is in accordance with law.

There is no evidence to show that there is any financial burden on the defendant. There is no material to show that the defendant has any other liability. Considering the financial status of the parties, the trial Court awarded maintenance as stated above.

Accordingly the appeal is dismissed at the stage of admission, since no grounds are made out for admission of the appeal.