Krishna Iyer vs Ramu Ammal

Kumara Pillai, J.—This is an appeal by a Brahmin husband against whom a decree for maintenance has been obtained by his wife. He was the second Defendant in the suit, and his elder brother was the first Defendant. According to the plaint allegations, the second Defendant married the Plaintiff in Ani 1092 and they were living together happily for some time with the first Defendant and his wife. While they were all thus living together the second Defendant, who was a Pakuthy Accountant, lost his job and fell into the habit of brooding and took to the life of an ascetic. Taking advantage of this situation, his mother and the first Defendant and his wife obtained undue influence over him and caused him to beat and illtreat the Plaintiff. Even food was denied to her and she was obliged to starve on several occasions. Ultimately, on account of this habitual cruelty and starvation, the Plaintiff was obliged to leave the Defendants'' house and go to her ancestral house. Even after going there she used to come and stay with the second Defendant in the Defendants'' house at Vishnupuram village on several occasions. But on the 25th Adi 1111 the second Defendant assaulted and beat her and necked her out of his house, and she has been obliged to live ever since with her brother in her ancestral house.

Subsequently with a view to defeat the Plaintiff, Defendants 1 and 2 brought into existence a partition deed whereby most of their ancestral properties were allotted to the first Defendant''s share, and a settlement deed was also executed by the second Defendant whereby the first Defendant''s children were to get the properties of the second Defendant after his death. The second Defendant has not been maintaining the Plaintiff ever since he drove her out of his house, and even the notice she issued to him claiming maintenance has been left unanswered. On these allegations the Plaintiff brought the suit claiming past and future maintenance from the second Defendant and the plaint schedule properties which, according to her, were the ancestral properties of the Defendants. Maintenance was asked for at the rate of Rs. 176 per year, i.e., Rs. 12/- per month as living expenses, Rs. 12/ per year on account of rent for living quarters, and Rs. 20/- per year for clothes; and past maintenance was claimed for 20 months before the date of suit.

Plaintiff also impugned the partition deed executed by Defendants 1 and 2 and the settlement deed executed by the second Defendant as fraudulent and not binding on her. Defendants 1 and 2 contested the suit filing separate written statements. They denied the habitual cruelty and illtreatment and the incident of 25-12-1111 mentioned in the plaint; and the second Defendant contended that the Plaintiff was not entitled to get separate maintenance as she had voluntarily left his house and was living with her brother without any justification. Plaintiff''s allegation that the partition deed was caused to be executed on account of fraud and undue influence was also denied. In his written statement, the second Defendant contended further that from his share of the ancestral properties he was getting only a net income of 7 kottas of paddy and that the rate at which the Plaintiff had claimed maintenance was, therefore, excessive and no past maintenance should be awarded in any event.

The lower Court found that the Plaintiff had been subjected to habitual cruelty and illtreatment and the second Defendant had assaulted and driven her out of his house on 25-12-1111 as alleged in the plaint, that she was therefore entitled to get separate maintenance, that the allegation that the partition deed was brought about by fraud and undue influence has not been substantiated, that the second Defendant''s net annual income was only 8 kottas of paddy, and that the proper rate of maintenance to be awarded to the Plaintiff would be Rs. 92/-per year, i.e., Rs. 6 per month for living expenses and Rs. 20/- per year for clothes. It also held that the Plaintiff could recover past arrears of maintenance for three years prior to the date of suit and passed a decree which reads as follows:

Plaintiff will recover from 2nd Defendant and his share of the plaint items 1 to 8 maintenance at the rate of Rs. 6/- per mensem and Rs. 20/- per annum for clothes. Arrears for 3 years prior to the date of suit are also allowed to be recovered by Plaintiff. Plaintiff will get one half of'' her costs from Defendants who will suffer their costs. Interest on costs and future interest on arrears 6 per cent. Sirkar will recover costs.

The second Defendant has filed this appeal from the above decree.

On the evidence, we are satisfied that the Plaintiff''s case that she had been subjected to habitual cruelty and illtreatment and driven out of the house by the second Defendant is true. (His Lordship then discussed evidence and proceeded:) In these circumstances we agree with the Court below in disbelieving the Defendants and their witnesses. We hold that the Plaintiff had been subjected to habitual cruelty and illtreatment by the second Defendant and that he had assaulted and beat her and driven her out of his house on 25-12-1111. The Plaintiff is, therefore, perfectly justified in living apart from him and claiming separate maintenance.

During the course of his evidence in the lower Court the second Defendant offered to take back the Plaintiff and maintain her in his house. Questions were also put to the Plaintiff during her examination asking her whether she was willing to return to the second Defendant and live with him. She refused to accept the offer, and one of the reasons given by her for the refusal was her apprehension that her life would be in danger if she returned to him. The Appellant''s learned Counsel contended that the illtreatment, cruelty and the incidents of 25-12-1111 were things which had happened long ago that the Plaintiff herself had condoned them by waiting till 1120 to claim separate maintenance and file this suit, that they were not likely to recur if the Plaintiff returned again to her husband, and that she is not therefore justified la refusing to accept the second Defendant''s offer and in living apart from him. Considering the past history of their relationship we are not prepared to say that the Plaintiff''s apprehension is groundless. Nor do we think that the present offer of the second Defendant to take back the Plaintiff and maintain her in his house is a sincere one.

After so cruelly driving her out of his house in 1111 he did not make the least attempt to invite her back during all these years. Event when she sent the notice claiming separate maintenance he made no offer to take her back and maintain her in his own house. He refused to accept the notice on the most flimsy ground. In-- Venkatapathi v. Puttamma AIR 1936 Mad 609 (A), Varadachariar J. has observed:

The cases to which our attention has been drawn do not suggest that cruelty and abandonment are the only grounds on which separate maintenance could be allowed to a wife. These two grounds are no doubt enumerated, but it also recognised that whenever the wife lives away from the husband for justifiable reasons she is entitled to separate maintenance. In the circumstances we have set out above there can be little doubt that the Plaintiff was obliged to live away from her husband and justifiably did so. It has not been suggested that she has done so for any improper purpose.

During the pendency of the suit however an offer was made on behalf of the Defendant that he is willing to take the Plaintiff back and it is argued that on that ground her right to maintenance should be negatived. Decided cases have recognised that an offer of this kind has got to be carefully scrutinised with a view to determine whether it was a bona fide offer.

Further on in the same judgment, the learned Judge says:

We may however refer to the observations of Venkatasubba Rao J. in -- H. Sheenappaya Vs. Rajamma alias Padmavathi, that it is reasonable to hold that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights would also entitle her to live apart from her husband and claim separate maintenance. If we may regard the Defendant''s present offer to take her back as analogous to the institution of a suit by him for restitution of conjugal rights, there are several authorities which will justify the Court in refusing the relief by way of restitution of conjugal rights to a person in the position of the Defendant even though cruelty may not be proved: see -- AIR 1927 154 (Oudh) ; -- Husaini Begam v. Rustam Ali Khan 29 All 222 (D) ; -- Kondal Rayal Reddiar Vs. Ranganayaki Ammal, ; Bai Jivi Vs. Narsing Lalbhai, ; and --''Ude Singh v. Mt. Dault Kaur AIR 1935 Lah 386 (G). We accordingly see no reason to interfere with the decision of the lower Court that the Plaintiff is entitled to claim separate maintenance.

Having regard to all the facts and circumstances of this case and the decision cited above and the authorities referred to in that decision, we are satisfied that the Court below was right in holding that the Plaintiff is entitled to claim separate maintenance and awarding the same to her.

It was next contended by the Appellant''s counsel that the rate of maintenance allowed by the Court below excessive. Having regard to the present price of paddy the amount allowed to the wife appears to be only about one-half of the net income from the second Defendant''s ancestral properties. He has no children or other wife to maintain. Further, the amount is hardly enough to keep body and soul together in these days. No woman will be able to eke out her existence on Rs. 6/- a month. As pointed out by Bhashyam Ayyangar J. in --''Jayanti Subbiah v. Alamelu Mangamma 27 Mad 45 (H), the maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property, ancestral or selfacquired. We consider that the amount awarded by the Court below is less than the bare minimum required by the Plaintiff and we are therefore unable to make any further reduction in the rate of maintenance awarded to her.

Lastly, it was contended that no award should be made in respect of past maintenance. In this connection it has to be pointed out that although the Plaintiff claimed arrears of maintenance for only 20 months prior to the date of suit the Court below has awarded to her arrears for three years prior to the date of suit. This was much more than what the Plaintiff herself wanted. In --''Parvathi Ammal v. Devi Ammal 1949 Ker LT 152 (I), this High, Court has held that the award of arrears of maintenance is in the sound discretion of the Court which it has to exercise according to the circumstances of the case and that if from the conduct of the arties it appeared that there was an abandonment or waiver of the claim there was a really Substantial reason for disallowing arrears. It has also been pointed out in that case that Maintenance should ordinarily come from the income of a person and not from the corpus of his estate and that when there has been a failure to claim maintenance for a good number years it may well be that the person liable Pay the same has been misled into the belief at the claim was abandoned and had not in consequence set aside any portion of his annual come to meet such a claim.

In the present, case the Defendant''s income is very small, and the Plaintiff had not been claiming maintenance for over eight years. There is no suggestion that she has contracted any dabt for her maintenance during this period or that she was living in penury. She was living (SIC) with her brother and was evidently being cared (SIC) and looked after by him. From the circum- (SIC) nces of the case, we are inclined to hold that (SIC) has been a waiver of past maintenance by (SIC) Plaintiff and that she can recover maintenance only from the date of the notice sent by her, viz., 3-8-1119. The decree of the Court below regarding arrears of maintenance will be modified accordingly.

In the result, except as regards the arrears of past maintenance, we confirm the decree o� the Court below and dismiss this appeal with costs. As regards past arrears of maintenance the Plaintiff is allowed to recover maintenance'' only from 3-8-1119. The decree of the Court below in regard to past arrears is modified accordingly.