K.P. Nagarathnamma vs K. Lakshmana

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 101/2001, on the file of Prl. Civil Judge (Jr. Dn.), Ballari, has come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing her suit for grant of maintenance and confirming the same in the appeal before the lower appellate Court.

The brief facts leading to this second appeal are that the appellant herein who is plaintiff in the trial Court is legally wedded wife of respondent K. Laxman. Their marriage was solemnized by their elders on 21.8.1989. Thereafter they were living together as husband and wife in the matrimonial house resulting in birth of a male child by name Shrikant on 10.8.1990. The facts on record would indicate that the respondent husband is SDA in a Government Department and the appellant wife is Anganawadi Teacher. The pleadings would disclose that the difference between the parties arose after the appellant conceived subsequent to her marriage with respondent and escalated during the period of pregnancy subsequently when she went to her parents house for confinement where she delivered a male child. The difference of opinion between the appellant and respondent resulted in the appellant continuing to live in the parental house and respondent staying alone in the matrimonial house.

It is seen that immediately after the birth of child, there were certain negotiations between the parties through elders in the family panchayat, which did not yield the required result. Thereafter the respondent herein initiated a proceeding in M.C. No. 8/1991 seeking restitution of conjugal rights with his wife under Section 9 of the Hindu Marriage Act. This proceedings for restitution of conjugal rights continued up to 1998 without yielding any result. When the proceedings of conjugal rights was pending, a petition under Section 125 of Cr.P.C. was filed by the wife seeking maintenance for self and minor ward. The said proceedings continued till 1999 and culminated in an order being passed on 20.2.1999, wherein the prayer of wife seeking maintenance was rejected. However the prayer for maintenance to the child was allowed in awarding Rs. 500/- as maintenance to the child which is maximum maintenance that could be awarded under Section 125 of Cr.P.C.

It is seen that in the meanwhile somewhere during end of 1998 prior to the criminal miscellaneous petition was disposed of, MC petition filed by the husband seeking restitution of conjugal rights was withdrawn after prolonged fight in the Court for a period of 8 years and thereafter he filed a petition in M.C. No. 22/1999 for the relief of decree of divorce on the ground of adultery and desertion. The pleading in the said proceedings is to the effect that the respondent in the said proceedings who is appellant herein was living in adultery with one Gangadhar and that being the cause for her to desert her husband and to live independently along with the minor child born in the wedlock. The continuous staying of the wife for almost 9 years from the date of delivery of the child till the date of filing of the said petition was termed as desertion without valid reason.

In the said proceedings, as expected, the respondent wife entered appearance, filed statement of objection denying the allegation of adultery and as well as desertion and tried to set up a defence that the reason for her to stay away from the matrimonial house is to the effect that her husband is living in adultery with another woman by name Hemavathi in the matrimonial house. Therefore she is not inclined to go back and live with her husband in the matrimonial house.

With these rival pleadings the proceedings was initiated which culminated in decree of divorce being granted in the said proceedings by judgment dated 1.2.2003, which was subject matter of an appeal before this Court in MFA No. 2514/2003. The appeal which was filed by the wife subsequently came to be allowed. the judgment and decree dissolving the marriage between the appellant and the respondent was set aside by judgment dated 14.8.2007. Thereafter the husband has taken up the matter in Special Leave Petition to the apex Court where special leave is granted and the appeal is pending consideration.

In the meanwhile during pendency of the petition filed by the husband seeking decree of dissolution of marriage on the grounds of adultery and desertion, the present suit in O.S. No. 101/2001 is filed seeking maintenance at the rate of Rs. 3,000/- per month for maintenance of herself. This is in addition to the maintenance, which is already awarded by the Court under Section 125 of Cr.P.C. exclusively for the benefit of the minor ward.

In the proceedings before the trial Court, defendant husband entered appearance, filed the written statement denying the neglect alleged in the suit and also contended that the plaintiff is not entitled to maintenance, by placing his line of defence on the ground that she is gainfully employed having sufficient means to maintain herself as the first and foremost defence and the second one being her adulterous life with her friend Gangadhar, who has sufficient means to take care of her and also on another defence that she is supported by her father who is a wealthy politician having vast extent of land and also income from agricultural activities.

Based on such defence and the plea raised in the plaint, issues were framed and parties were called upon to adduce evidence. The trial Court based on the pleadings and evidence available on record, answered the 1st issue which was framed to ascertain whether there is willful negligence on the part of the defendant which has resulted in refusal to maintain the plaintiff was held in affirmative. Similarly, the issue which was framed to consider whether the defendant has sufficient means to provide her maintenance was also answered in the affirmative. However, when it comes to 3rd issue, which is most relevant in the said proceedings which is with reference to plaintiff establishing that she is unable to maintain herself was answered in the negative on the ground that she is gainfully employed having a permanent job and regular income, as such most important issue which was required to be decided in the proceedings for maintenance was held against her by answering the same in negative. With reference to the issues raised on the defence that plaintiff has illicit intimacy with Gangadhar was answered in the negative, consequently while disposing of the suit, the other two important issues regarding entitlement of plaintiff to seek maintenance from her husband was answered in the negative. Consequently the suit of the plaintiff is dismissed. While dismissing the suit, the additional issue which was framed regarding maintainability of the suit for maintenance in view of the judgment passed in Crl. Misc. No. 130/1996 would come in the way of plaintiff seeking maintenance was answered in the negative and consequently suit of the plaintiff is dismissed.

Being aggrieved by the same, the plaintiff wife preferred an appeal in R.A. No. 36/2004, on the file of Prl. Civil Judge (Sr. Dn.), Ballari, wherein the lower appellate Court on re-appreciation of pleadings, oral and documentary evidence available on record, with reference to the finding of the trial Court on issues 1 to 6 and additional issue No. 1, framed two points for consideration and answering both in the negative, dismissed the appeal filed by the wife. As against the said concurrent finding, this second appeal is filed on the ground that serious error is committed by both the Courts below. While considering the pleading and evidence available on record resulting in miscarriage of justice in this appeal, initially it was admitted on 31.3.2011 by framing three substantial questions of law in addition to the substantial questions of law which were raised by the plaintiff in this second appeal.

However, when this matter was heard for final disposal, at length, this Court felt that the substantial questions of law which are framed by the predecessor on 31.3.2011 are on the premise that in a proceedings initiated by the wife there is already a finding to the effect that the respondent husband has taken a second wife and that being the cause for neglecting to maintain the appellant, who is wife which on the face of it is erroneous, both on facts and as well as on the material available on record. No finding is given in any of the proceedings conclusively that there is second marriage in existence between the respondent husband and some other woman and there is no specific finding in the present proceedings either by the trial Court or by the lower appellate Court in holding that the said marriage is the cause for respondent husband to refuse to maintain the appellant wife. Therefore the substantial questions of law which were framed on 31.3.2011 were based on the arguments which was submitted at the time of framing of substantial questions of law but not based on the material available on record. In that view of the matter, this Court after hearing the parties for some time proceeded to recast the substantial questions of law as under.

"(i) Whether both the Courts below have rightly appreciated the pleadings while deciding the entitlement of plaintiff wife to seek maintenance and hold that she is not entitled to seek maintenance?

(ii) Whether the Courts below were right in holding that the ability of respondent husband to pay compensation is not what is required to be considered and the fact that is required to be considered is the right of appellant wife to seek maintenance as a matter of right?"

Thereafter heard the learned counsel for the appellant and as well as respondent on the substantial questions of law which are framed as above and proceed to answer them against the wife in the affirmative for the following reasons.

Admittedly the marriage between the appellant and the respondent has taken place on 21.8.1989 and that they lived together as husband and wife for few months until she conceived. The records would disclose that even before the appellant wife delivered a male child on 10.8.1990, she had left the matrimonial house and moved to her parents house for confinement. However, subsequent to delivery of child, the appellant wife refused to come back and to live with her husband for the reason best known to her. There is nothing on record to disclose the reason for her denying to come back to the matrimonial house is second marriage of respondent husband with some other woman by name Hemavathi. In fact, the evidence of P.W. 1 plaintiff in the original suit who is none other than the appellant herein in her cross examination would clearly indicate that she admits the alleged marriage between her husband Laxman and another lady by name Hemavathi had not taken place till disposal of the proceedings in Crl. Misc. No. 130/1996, which is disposed of by order dated 20.2.1999. If that is the case, then what was the reason for her to stay away from the matrimonial house is not seen in the said proceedings. Unless there is a valid reason for the wife to stay away from the matrimonial house and the company of her husband, she is not entitled as a matter of right to seek maintenance from the husband on the ground that she wants to live independently and separately away from the matrimonial house. In an institution of marriage they are required to live under the same roof attending the needs of one another including conjugal obligations. If one of them decides to stay away from the company of another without any valid reason, they have no right to seek maintenance or any other benefit, which would stem out of the relationship between them as husband and wife.

In the instant case as wife herself would admit that the respondent husband had not married till 1999, it is according to the wife, thereafter at some point of time the respondent husband married a lady by name Hemavathi. Either in this proceedings or in the proceedings before the Family Court, similarly, though the husband has made serious allegations of adultery, he was not able to establish the extra marital relationship of his wife appellant herein with adulter Gangadhar. In any event the entire record would not disclose either the alleged extra marital affair of the husband or the wife until 1999. When that being the situation, what was the reason for the wife to stay away from the company of the husband is not properly explained.

It is further seen that from the marriage invitation itself the avocation of wife is seen. In the invitation appellant wife Nagaratna is referred to as a Teacher by profession. It presupposes that she had an employment at the time of marriage and she had a separate income and the husband was Second Division Assistant in a Government Department. What was derived from their avocation is not material here. What is material is each one had independent income and that probably made them to feel that they are not depending on other. Therefore there was no move or attempt by each of them to adjust the difference between them in several panchayats which were held. However it is seen, that the first move for reconciliation is by the husband in filing a petition in M.C. No. 8/1991 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights, which was fought not for one or two years, but for a period of about eight years. In fact it is the wife without showing any interest in giving up her difference and to concede to live with her husband in matrimonial house which has resulted in the said petition being withdrawn in the year 1998 and a comprehensive petition for divorce being filed in the year 1999 by the husband in M.C. No. 22/1999.

It is seen that during the pendency of M.C. No. 8/1991 no attempt was made by the wife to join her husband. No attempt was made to seek maintenance in the said proceedings. It is only for the first time in the year 1996 she files a petition under Section 125 of Cr.P.C., seeking maintenance for herself and her son. Though the prayer for her maintenance was rejected on technical point, factually the petition for seeking maintenance was allowed awarding maximum amount of maintenance that could be awarded under the said provision but the same was restricted to the benefit of minor son which was confirmed by the revisional Court in Crl. Rev. Pet. No. 61/1999 and by this Court in Crl. P. No. 1659/2005 which was disposed of on 28.7.2006. Therefore she was continuously pursuing the maintenance petition under Section 125 of Cr.P.C., from 1996 to 2006 and the present suit in O.S. No. 101/2001 is filed seeking maintenance in addition to the one which she was pursuing under Section 125 of Cr.P.C., which is nothing but duplication of her claim before two different forum i.e., one under the criminal provision and one under the proceedings initiated under the Civil Procedure Code in Civil Court i.e., the Family Court.

If the aforesaid conduct of the wife is looked into with, what is seen is from the date of delivery of child on 10.8.1990 till this day, she has not taken a step forward to live with the company of her husband at any point of time. On the contrary, she successfully opposed the petition, which was filed by her husband seeking restitution of conjugal rights for a period of eight years, during which period she made him to suffer without the company of a wife though he was wedded at that time. As rightly accepted in her cross examination, he was not married till 1999 either to Hemavathi or to any other woman and it is respondent No. 1 saying that subsequent to 1999 he had married Hemavathi. However there is nothing on record to substantiate the same and whatever the finding that is given by this Court in MFA No. 2515/2003 contradicting the finding of M.C. No. 22/1999 is the subject matter of proceedings before the Apex Court. Until that is decided, either this Court or any other Court shall not deem it as if there is already a marriage between respondent husband with alleged companion Hemavathi who is said to be living with him from the date he deserted his wife.

On the contrary, what is seen on records is desertion of husband by the appellant herein for the reason best known to her and in the entire 25 years after deserting her husband what is pursued is only to get maintenance from him and not to resolve the disputes, if any, between them and to revive the marital relationship. In this background the conduct of the appellant wife is rightly appreciated by the Family Court while considering Crl. Misc. No. 130/1996 and also M.C. No. 22/1999 for decree of divorce filed by the husband and has rightly come to the conclusion that the economic independence of appellant herein has made her to stay away from her husband and also probably given her the courage to think of adulterous life, if what is alleged by her husband is true. However, this Court would not like to give any finding on this aspect, but nevertheless, place on record that in every marriage the conduct of the parties in not thrashing the small misunderstandings at earlier stage would be the only cause which would ultimately lead to each one of them to going astray in the life to seek solace in the arm of somebody, that may be the cause for both appellant and as well as the respondent in this proceedings in finding solace in company of some other persons who are not related to them in marriage, which has resulted in their marriage being broken irretrievably.

This Court would observe that this proceedings which is initiated by the wife in O.S. No. 101/2001 and pursuing the same till this appeal for maintenance is nothing but the greed for money and not for her sustenance. Her prayer for alleged maintenance, is rightly appreciated by both the Courts below. It is further seen that in the trial Court the first two issues which are framed though would indicate that the respondent is capable of maintaining the wife by itself is not an obligation on him to maintain the wife unless she is in a position where she need to be maintained. The appellant herein is a woman who does not have any respect for the institution of marriage and would treat living with her husband below her dignity and she can knock the doors of the Court only for the financial benefit to support her independent thinking, independent living, without the company of husband. Such kind of conduct should not be and shall never be encouraged by the Courts, which would have a negative effect on the fabric of social life dealing with the marital relation of a man and wife.

In that view of the matter, confirming the judgment rendered by both the Courts below by answering the substantial questions of law in affirmative against the wife, this second appeal filed by her seeking maintenance is hereby dismissed.