P. Shankar vs D. Jayamma

Rathnakala, J.

Though this matter is posted for orders, the same is taken up for final disposal having regard to the facts and circumstances of the case.

The judgment and decree dated 23rd October 2014 in O.S. No. 50/2012 passed by the Principal Judge, Family Court at Mysore, is under challenge in this appeal.

The appellant is the aggrieved defendant/husband of O.S. No. 50/2012 instituted by the wife/plaintiff, seeking for maintenance of Rs. 5,000/- per month and also to create a charge over the suit schedule property for the maintenance of the plaintiff.

For the sake of convenience, the parties will be referred to as per their ranking in the trial court.

Case of the plaintiff was, she is the legally wedded wife of the defendant having married 50 years back as per the customs; out of the said marriage, the couple had two children and their married daughter is expired. The parties and their son are all residing together jointly under the same roof. A site was allotted in the name of the husband by C.I.T.B., and plaintiffs father paid the entire amount to purchase the site and to construct a residential house therein. The husband is getting monthly pension of Rs. 12,000/- but is not paying anything towards maintenance of the family. She has no other source of income. Her son is not looking after her welfare. Husband has deserted her for last several years; he is making efforts to alienate the suit property to make wrongful gain for himself, etc.

Suit was contested by the defendant/husband. He admitted the relationship, and set up a defence that he was a Draftsman in P.W.D. and his deceased daughter has left behind her two children with him. He is giving education to those grand children. They are studying M.B.A. and Computer Diploma respectively. He has spent considerable amount for the second marriage of his son; he has looked after the wife well; he has constructed the schedule house by himself and residing with the plaintiff in the cause title address. He has kept deposits in the Bank in the name of his wife and has provided gold ornaments to her and maintaining her. In order to harass him, she has filed the suit.

On the above pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiff proves that the defendant though is capable of maintaining the plaintiff has wilfully neglected her to maintain?

Whether the plaintiff proves that she is unable to maintain herself having no source of income?

Whether the plaintiff is entitled for maintenance? If so, at what rate?

Whether it is necessary to create charge over the plaint schedule property for maintenance of the plaintiff as prayed?"

During trial, both parties were examined as PW-1 and DW-1 respectively. On behalf of the wife, 13 documents and on behalf of the husband, 11 documents were marked. After giving audience to both parties, all the issues are answered affirmatively and the suit is decreed by directing the husband to pay maintenance of Rs. 3,500/- per month from the date of the suit till the life time of the wife and charge is created over the suit schedule property.

Sri. R.D. Renukaradhya, learned Counsel appearing for the defendant submits that, it is an admitted fact that the parties are residing in the same address and that the husband is providing all amenities to the wife including food, cloths and also looking after her medical expenses. Whatever income he has received from his service and pension, he has not spent money for anything else except for the family and has made deposits in the name of the wife. The court below ought to have considered the fact that, the plaintiff is provided with all basic amenities such as food, clothing, medicine and shelter and there was no cause of action for the suit. Hence, the impugned judgment and decree is liable to be set aside.

In view of the above submission at the Bar, we have perused the impugned judgment and decree passed by the Trial Court.

The relationship between the parties and their residence under the same roof is an admitted fact. The trial court has taken note of the fact from the cross-examination evidence of the husband that the wife and her son used to cook their food separately in the kitchen and he eats in the hotel and keeps his room always locked since he has his cash and some valuable documents in the room. He further admits that he has sold a portion of the vacant site abutting to his residential house in the year 2005. On his admission, the Trial Court has drawn inference against the husband that he is neglecting his wife. Added to this, he had no documentary proof to demonstrate that he is maintaining his wife. He had not denied the right of the wife over the suit property. On his own showing, he is getting a pension of Rs. 17,000/- per month which in the opinion of the learned Trial Judge is sufficient to maintain his wife, who is solely dependant on him. By holding that the husband is capable of maintaining his wife in her old days and she requires Rs. 3,500/- per month towards maintenance, the court below upheld the case of the wife directing the husband to pay monthly maintenance of Rs. 3,500/- and to create the charge over the suit property, restraining him from alienating the property and accordingly has decreed the suit.

In the light of the admitted facts, though the couple are residing under the same roof are not having common kitchen and the wife having not been shown any source of income as against the husband, who is getting a sumptuous pension and the right of the wife over the suit schedule property having not been specifically denied, the findings arrived by the court below, in our considered opinion, is on sound reasoning and the Judgment and Decree of the Court below does not call for interference.

Hence, the appeal is dismissed.

No costs.

In view of disposal of the main matter itself, I.A. No. 1/2015 filed for condonation of delay in filing the appeal and I.A. No. 2/2015 filed for stay, do not survive for consideration. Accordingly, they are dismissed as having become infructuous.