Chidambaranataraja Nadar vs Thanalakshmi Nadachi

Ismail, J.—The defendant in O.S. No. 102 of 1970 on the file of the Court of the Subordinate Judge of Nagercoil is the appellant herein.

The suit was instituted by the respondent herein for maintenance. It was admitted that the parties who are husband and wife were married on 19th

November, 1956, and were living as husband and wife for some time, and, according to the respondent, the appellant herein ill-treated the

respondent, removed her jewels along with the tali and sent her out of the house on 27th October 1957, and thereafter she had been living in the

father''s house, and she had not been taken by the appellant herein. It was also admitted that she filed a suit for recovery of the jewels from the

appellant herein and obtained a decree in O.S. No. 34 of 1958. Equally, it was admitted that the appellant, in his turn, filed a suit for restitution of

conjugal rights against the respondent herein and that suit was dismissed. Later, again, there was another proceeding by which the respondent

herein took action against the appellant herein for bigamy, but that proceeding ended in failure, because the appellant had not married again, but

was merely keeping a concubine. It is after all these proceedings, the present suit was instituted by the respondent herein claiming maintenance.

The case of the appellant was that the respondent''s father had made certain promises of gifts to the appellant and the latter had insisted that those

promises should be fulfilled and on account of this, the relationship between the parties got strained, and on 27th October 1957 the respondent

was taken away by her father along with her jewels and other articles during the absence of the appellant from the house, and in spite of the efforts

of the appellant to get back the respondent to his house, the respondent had declined to come back. The written statement also referred to the

action taken by the respondent under S. 494 of the I.P.C. and the dismissal of those proceedings. With regard to the claim for maintenance, the

appellant stated that he had got possession of only item 6 of the plaint schedule and all the other items noted in the plaint schedule had been

alienated by him by mortgage or otherwise and in items 10, 11 and 12, he was having only a one-sixth share and that was subject to an othi and all

those properties were charged for maintenance at the rate of Rs. 15/- per annum to one Deivapazham Nadachi and that the respondent, on the

other hand, was very rich having lot of cash with her, and that the lorry the appellant was said to be having was working at a loss and he had also

to discharge a debt of Rs. 30,000/-. The appellant also contended that the respondent was not entitled to any separate maintenance and that the

claim for arrears of maintenance for a period of twelve years was barred by limitation:

On the above pleadings, the following issues were framed for trial:--

(1) Whether the plaintiff is entitled to claim maintenance?

(2) If so, what is the rate of maintenance?

(3) Whether the plaintiff is entitled to arrears of maintenance for the past twelve years?

(4) To what relief is the plaintiff entitled?

The learned Subordinate Judge of Nagercoil, by judgment and decree, dated 29th February 1972, decreed the suit awarding maintenance at the

rate of Rs. 100/- per mensem from the date of suit and at the rate of Rs. 60/- per mensem as arrears of past maintenance for a period of twelve

years prior to the institution of the suit. It is against this judgment and decree, the present appeal has been preferred by the defendant in the suit.

Having regard to the admission of the appellant himself that he was living with another woman and has two daughters through her, the appellant

does not question the right of the respondent to claim separate maintenance. The learned counsel for the appellant addressed arguments only on

two points. One was that having regard to the fact that the respondent had all along kept quiet without claiming any maintenance, the Court below

should not have awarded arrears of maintenance for twelve years, and the other was that the respondent herself being rich, the Court below should

not have awarded maintenance at the rate at which it was awarded. As far as the first point is concerned, the learned counsel frankly conceded

that the appellant not having pleaded either waiver or abandonment on the part of the respondent with regard to past maintenance, the appellant

cannot question the claim on that ground. As a matter of fact, a Bench decision of this Court, in Guruswami Mudaliar Vs. Angaiyarkanni Ammal

and Others, to which I was a party, after considering a decision of the Privy Council in Ekradeswari Bahuasin v. Hemeshwar Singh 56 Ind. App.

132 and a Bench decision of this court in Sobhanadramma v. Narasimhaswami ILR 57 Mad. 1002=39 L.W. 667 and another in Panchakshara

Chetty Vs. Pattammal and Others, held that a wife''s or widow''s claim for past maintenance is a legal right and unless adequate grounds are shown

for inferring that she has waived or abandoned the same, the defendant cannot escape liability. In this case, as I pointed out already, the appellant

herein, not having put forward the plea of waiver or abandonment, cannot question the grant of arrears of maintenance on either of the abovesaid

grounds. However, the learned counsel repeatedly relied on a decision of the Supreme Court in Dr. Kulbhushan Kumar Vs. Smt. Raj Kumari and

Another, . I am of opinion that that decision is not of any assistance whatever to the appellant herein. The learned counsel drew my attention to

paragraph 20 of the judgment of the Supreme Court wherein it is stated:

The question as to the date from which maintenance would be claimable was also mooted before the Judicial Committee in the above case. The

High Court had turned down the widow''s claim to arrears of maintenance. Examining the several decisions cited before it, the Board took the view

that the widow was entitled to maintenance not from the date of the decree as found by the Courts below nor from the date of the suit in April

1922, but from 1st of January 1922 in view of the fact that it was towards the end of the year 1921 when the widow had made up her mind to stay

on at her father''s place. In this case, as already noted, the claim to maintenance was first laid by a lawyer''s notice of 1951 but the suit was filed in

1954. The trial Court decreed maintenance from the date of the decree in 1957 but the High Court thought fit to allow maintenance from the date

of the institution of the suit. No exception can be taken to the fixing of the date of institution of the suit as the terminus a quo for the maintenance

claimed by the respondent.

I am of opinion that the above observation which was made with reference to the facts of the particular case has no relevancy to the present case.

As a matter of fact, the learned counsel for the appellant himself had to admit that this decision does not lay down any general principles with

regard to the grant of arrears of maintenance or with regard to the starting point with reference to which arrears of maintenance could be granted.

Under these circumstances, the grant of arrears of maintenance for a period of twelve years cannot be said to be unwarranted or illegal.

As far as the quantum of maintenance is concerned, as I pointed out already, future maintenance was granted to the respondent at the rate of

Rs. 100/- from the date of suit and the past maintenance was granted at the rate of Rs. 60/- per mensem for a period of twelve years. It is not in

dispute that the appellant is really rich. As a matter of fact, the learned trial Judge has discussed the properties possessed by the appellant and has

considered the contention put forward by him that the properties were encumbered. The finding of the learned trial Judge is that the appellant had

tried his best to burden his properties with mortgages during a space of twelve years with a view to screen his properties from being proceeded

against by his wife, and it was natural that he was suppressing the truth regarding the income. Having regard to the various proceedings taken by

the parties in civil and criminal courts, such a conclusion cannot be said to be unwarranted or unreasonable. On the other hand, the learned counsel

for the appellant drew my attention to paragraph 14 of the judgment of the trial court, wherein the learned Judge points out:

On the side of the plaintiff it is pointed out that her father is a rich man and she herself has lent money on othi and has jewels with her. I is quite

clear that the plaintiff is born of a dccon family and she is entitled to lead a dignified and decent life commensurate with the status of her birth and

family. She has demanded Rs. 200/- to be decreed towards her expenses. The defendant has simply asserted that he is jobless and he gets an

income of Rs. 80/- only per month. It is unimaginable that he could manage to maintain his new lady Ammathankam and two children with the help

of just 80 rupees per month. It is quite clear that he shall be making income through the lorry and the lands.

Apart from the statements contained in this paragraph of the judgment that the respondent''s father was a rich man and she herself had lent moneys

on othi and has jewels with her, there is absolutely no evidence as to what is the extent of the property possessed by the respondent or what is the

income derived therefrom. In these circumstances and in the absence of any definite evidence as to the regular income which the respondent is

receiving, it cannot be stated that the respondent herself is rich, and therefore, she is not entitled to any maintenance from the husband. I have

already referred to the fact that the rate of Rs. 100/- per mensem for future maintenance or the rate of Rs. 60/- per mensem for past maintenance

cannot be said to be either excessive or exorbitant, having regard to the cost of living.

Under these circumstances, there are no merits in the appeal, and the same is dismissed with costs.