G. Krishnamurthy vs M.N. Madhushree

B. Veerappa, J.—This is an unsuccessful defendant''s regular second appeal against the judgment and decree dated 9.7.2014 made in R.A. No. 10/2012 on the file of the Senior Civil Judge & JMFC, Tiptur, confirming the judgment and decree dated 14.2.2012 made in O.S. No. 195/2010 on the file of the Principal Civil Judge and JMFC., Tiptur, granting maintenance of Rs. 10,000/- to the respondent/plaintiff/wife from the date of the suit till her lifetime.

The respondent-plaintiff had filed a suit for maintenance contending that her marriage with the defendant/present appellant took place on 28.11.2005 at Gurukula Kalyana Mantapa and after her marriage with the defendant at Shimoga, and she had led married life with the defendant for four years and their relationship was cordial. The defendant was working as lecturer in the Department of Chemistry at Sahyadri Science College, Shimoga and out of their wedlock a female child was born and all the expenses were met by the parents of the plaintiff. The defendant and his parents started blaming the plaintiff for giving birth to a child in "Mula Nakshathra". The defendant at the instigation of his parents and his younger brother has not even come to see his child. The plaintiff was made to return to her parents house after discharge from the hospital along with the child. Defendant has not shown any interest towards his wife and child and he was always ready to separate himself from the plaintiff for one or the other reason. Thereafter the defendant issued a legal notice with bald averments and he had made several allegations against the wife about her character. The panchayati held to reconcile the matter was not fruitful. The plaintiff is living in a remote area and her father was a Government Teacher and the plaintiff''s mother was President of Gramapanchayath and they were well known in the locality. The defendant was making an attempt to marry the sister of the plaintiff by name Divyashree and was always compelling her to marry him and defendant was making threatening calls to the plaintiff and her parents. The plaintiff further contended that the defendant has neglected to maintain the plaintiff and her child and the defendant is working as a Professor and drawing a monthly salary of Rs. 45,000/- and he is also earning about Rs. 2,00,000/- per month from the agricultural properties and he owns a house. Therefore, the plaintiff filed the suit for maintenance of Rs. 20,000/-.

The defendant filed written statement denied the plaint averments and admitted the marriage and relationship of the plaintiff and contended that he is having a reputation in the College and the plaintiff used to quarrel and was not ready and willing to discharge her marital obligation. In continuation of the marital life with the plaintiff, the defendant himself has taken care of the plaintiff during her pregnancy and till the delivery time. The mother and father of the plaintiff are involved in the political activities and as such her mother was unable to look after the plaintiff. The defendant further contended that he is living along with his family members and two brothers. The father of the defendant is aged and he is having kidney problem and defendant has to take care of his father and mother aged about 72 years and 70 years respectively and also contended that the defendant is ready and willing to take her back to lead a happy married life. He has denied the income to the extent of Rs. 45,000/- per month etc. Therefore, he sought for dismissal of the suit.

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

Whether the plaintiff is entitled for maintenance of Rs. 20,000/- P.M. from the defendant?

What Order or decree?

Additional issue:

Whether the plaintiff proves that the defendant has deserted her and refused to maintain her as stated in the suit?

In order to establish the plaintiff''s case, plaintiff examined as P.W. 1 has marked the documents Exs. P1 to P5. The defendant examined as D.W. 1 has marked the documents Exs. D1 to D2.

After considering the entire material on record. The Trial Court recorded a finding that the plaintiff is entitled to maintenance of Rs. 20,000/- per month and also held that the plaintiff proved the relationship with the defendant and the income of the defendant by producing material documents Exs. P1 to P5. Accordingly the Trial Court granted Rs. 10,000/- towards maintenance of the plaintiff.

Aggrieved by the said judgment and decree the defendant preferred R.A. No. 10/2012 before the Senior Civil Judge & JMFC, Tiptur, who after hearing both the parties passed the impugned judgment and decree, dismissing the appeal and confirmed the judgment and decree of the Trial Court.

Against the concurrent findings of fact recorded by the Courts below, the appellant did not deter in preferring this regular second appeal as a last ditch attempt.

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

Sri Prakash for Sri Naik N.R., learned counsel appearing for the appellant - husband vehemently contended that the judgment and decree of the Courts below granting Rs. 10,000/- to the wife is exorbitant and without any basis. He also contended that the plaintiff is the only daughter to her parents therefore, the defendant is not bound to maintain his wife. Therefore, sought to set aside the judgment and decree of the Court below.

Per contra, Sri. Anand, learned counsel appearing on behalf of Jagadish Mundargi, learned counsel for the respondent - wife sought to justify the judgment and decree of the Trial Court.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

It is an admitted fact that the marriage between the plaintiff and defendant took place on 28.11.2005 at Gurukula Kalyana Mantapa and out of their wedlock a female child was borne and now she is aged about 6 years. It is also not in dispute that the defendant who is a Professor in the Department of Chemistry at Sahyadri Science College, Shimoga. It is the specific case of the plaintiff that the defendant willfully neglected the plaintiff and her daughter. The defendant has not disputed the relationship and denied that he is not maintaining his wife and daughter. Admittedly the defendant has not filed any application or suit for restitution of conjugal rights under the provisions of Section 9 of the Hindu Marriage Act. The Trial Court considering the entire material on record, recorded a finding that the contention of the plaintiff that she has lived with the defendant for a period of four years is admitted by the defendant. To prove her case P.W. 1 - Plaintiff examined as P.W. 1 and has marked the documents Exs. P-1 to P-5. Ex. P1 is the invitation card, Ex. P2 is the Legal Notice, Ex. P3 is the Reply Notice, Ex. P4 is the Postal Acknowledgment, Ex. P5 is the Birth Certificate of the child. In order to disprove the case of the plaintiff, defendant examined as D.W. 1 has marked the documents Exs. D1 to D12. Ex. D1 is the Medical Certificate, Ex. D2 is the Lab Report, Ex. D3 is the Medical Prescription, Exs. D4 to D6 - Lab Reports, Exs. D7 & Ex. D3 is the Medical Prescription, Exs. D4 to D7 - Lab Reports, Exs.D8 to D11 - Medical Receipts and Ex. D12 is the Study Certificate.

The trial Court relying upon the provisions of Section 18 of Hindu Adoptions and Maintenance Act, 1956 held that a Hindu wife is entitled for maintenance from her husband. The trial Court also recorded a finding that the defendant has failed to prove that the plaintiff has deserted. Though the defendant has contended that he has made an effort to bring the plaintiff to the home, but there is no such evidence to prove the same. It is a fact that plaintiff is still residing with her parents. Defendant has not filed any petition for restitution of conjugal rights against the plaintiff to get back her. It is true that the defendant has issued legal notice to the plaintiff calling her to join with him, which was replied by the plaintiff-wife by issuing Ex. P3-reply notice. The trial Court also observed that it is an important thing to note that defendant has opted to file petition against the plaintiff seeking decree of divorce. Such act of the defendant clearly shows that the abandonment to the plaintiff by the defendant and the defendant has not provided any maintenance to the plaintiff and her child. It clearly indicates that defendant has deserted the plaintiff and her children. The trial Court also recorded a finding that the defendant has admittedly working as an Assistant Professor in the First Grade Degree College and as per the salary certificate, he is drawing gross salary of Rs. 49,577/- and net salary of Rs. 39,839/-. Though the plaintiff has taken a contention that plaintiff is having agricultural income, but there is no evidence to prove the same before the Court. The trial Court taking into consideration the entire oral and documentary evidence on record, come to a conclusion that the defendant is drawing a gross salary of Rs. 49,577/- and net salary of Rs. 39,839/- Therefore, the trial Court granted Rs. 10,000/- to the plaintiff towards her maintenance.

On re-appreciation of the entire material on record, the lower appellate Court has framed three issues and recorded a finding that D.W. 1 i.e. Dr. G. Krishnamurthy further deposed that one of his elder brothers working as a Gazetted Officer in Sericulture Department and he has further admitted the fact that he reimbursed the medical expenditure which incurred regarding his mother treatment from the Government. Till now his father is the head of the joint family and further deposed that his younger brother also married recently and his three sisters already married and they were residing with their husbands house. The evidence of P.W. 1 and D.W. 1 clearly reveal that there is a difference between the plaintiff and defendant in respect of their family matters and also matrimonial life. As an Assistant Professor, the defendant is able to resolve all the disputes or difference between husband and wife and their family members. The evidence of D.W. 1, itself shows that he has not made any effort on that line. Even though he is a responsible person in the society, he neglected his wife and daughter without giving maintenance to them. That, what ever the property or income in the hands of the parents of the plaintiff that is not comes to the picture to maintain the life of plaintiff and her daughter. Therefore, the lower appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal.

Though the learned counsel for the appellant contended that the plaintiff-wife is the only daughter to their parents and defendant has to look after her family members along with age old parents, no material documents are produced before the Court to prove that he is having an additional burden on him and the fact is that his elder brother also working as a Gazetted Officer in Sericulture Department is not in dispute. The material documents on record clearly indicate that, the defendant has neglected the plaintiff and her daughter. It is the duty of the husband to maintain the wife when she is not in a position to maintain herself. The contention of the defendant that the plaintiff is also earning for her livelihood cannot be accepted without any material. The Hon''ble Supreme Court while considering the provisions of Section 125 Code of Criminal Procedure in the case of Bhuwan Mohan Singh Vs. Meena, has held as under:

Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

Both the Courts below concurrently held that relationship is admitted. Out of the wedlock, a female child was also born. The income of the defendant-husband is proved and the negligence by the defendant is also proved. The findings of fact recorded by the Courts below are based on evidence of P.W. 1 and D.W. 1 and the material documents Exs. P1 to P5 and Exs. D1 to D12. Same is in accordance with law. The appellant has not made out any prima-facie case to interfere with the Judgment and Decree of the Courts below, exercising the powers under the provisions of Section 100 of the Code of Civil Procedure. No substantial question of law involved in the present appeal. Accordingly, the appeal is dismissed at the stage of admission.