Perumayee Ammal vs Varadhappa Goundar

K. Sampath, J.—The plaintiff is the appellant. She filed suit O.S. No. 1469/79 before the District Munsif Court, Rasipuram, as an indigent

person claiming maintenance in a sum of Rs.250/- per month and Rs.20/- per month towards house rent against her husband, the respondent

herein, and for a charge over the ''A'' Schedule property for the realisation of the maintenance amount and for costs. Her case in the plaint was as

follows:

She was married to the respondent about 24 years prior to the suit and a female child was born to them, who was aged about 19 or 20 years at

the time of the filing of the suit. About one year prior to the filing of the suit, the respondent neglected the appellant, treated her cruelly by beating

her severely and drove her out of the house by stating that if she entered the house, she would be done away with and that her legs and hands

would be removed. In spite of mediation, the respondent refused to take her back and live with her and hence the suit had to be filed. The

respondent owned 1-1/2 acres of Nanja and 4-1/2 acres of Punja lands worth about Rs.25,000/- and he had been getting a net income of Rs.

10,000/- per year from agriculture.

The respondent resisted the suit admitting the marriage and the birth of the female child, but denied the cruelty on his part. He also denied that he

drove her out of the house by beating her in the first week of October, 1978. She left the matrimonial home about 12 years prior to the suit after

picking up a quarrel with the respondent. She took away her jewels and in spite of mediation, she refused to return home and live with him. It was

only his daughter who cooked food and fed him and after her marriage he had been cooking by himself. He also expressed his willingness to take

the appellant back and live with her. He denied getting a net income of Rs. 10,000/- per annum from agriculture. There were debts due and

payable by him and in any event, the appellant would not be entitled to get monthly maintenance of more than Rs.25/- She was gainfully employed

earning Rs.4 per day and she was also doing money lending business.

The trial court framed the necessary issues and found that the cruelty and abandonment pleaded by the appellant were true, that the desertion

alleged in the written statement was not true and that the appellant was entitled to a maintenance of Rs.100/- per month and Rs.10/- towards

house rent by its judgment and decree dated 26.2.1981. The learned District Munsif, Rasipuram, decreed the suit for Rs.110/- per month with a

charge over the ''A'' schedule property for the realisation of the maintenance amount.

The respondent filed appeal A.S. No. 41/81 before the Subordinate Judge, Namakkal, and the learned Subordinate Judge reversed the

decision of the trial court holding that the appellant had not established the allegation of cruelty as pleaded by her and that she had herself deserted

the respondent without any justifiable cause. So holding, by his judgment and decree dated 11.1.1982 the learned Subordinate Judge allowed the

appeal and dismissed the suit for maintenance. The learned Subordinate Judge, however, quantified the maintenance amount and the monthly rent

at Rs.60/- and Rs.10/- respectively. Aggrieved the present Second Appeal has been filed.

At the time of admission, the following substantial questions of law were framed for decision in the Second Appeal:

(1) Whether the finding of the lower Appellate Court that the appellant had not established legal cruelty ignoring the evidence of P.W.1, and the

admission of her husband, D.W.2. is perverse and should be set aside?

(2) When there is conflict of oral evidence and the decision hinges upon the credibility of witnesses, in the absence of special features about the

evidence of a particular witness which has escaped the trial Court the lower appellate Court was justified in reversing the finding of the trial court?

and

(3) Whether the lower appellate Court was justified in reducing the maintenance as fixed by the trial Court without even creating a charge on the

properties of the respondent?

Mr. R. Subramaniam, learned counsel for the appellant, submitted that the appellant had established that the respondent had treated her with

such cruelty as to cause a responsible apprehension in her mind that it would he harmful and injurious to live with him and therefore she was entitled

to live separately from the respondent without forfeiting her claim to maintenance. The learned Counsel also submitted that the appellant had

enumerated the acts of cruelties and had complained to the police and that the respondent had also admitted his driving her out. In any event,

according to the learned counsel, she would be entitled to maintenance even assuming without conceding that she was staying away from her

husband without just and reasonable cause.

Though the respondent had been served in the Second Appeal, he did not choose to engage a Counsel and contest the Second Appeal. Having

regard to the importance of the case, this Court appointed Mr. T.V. Sivakumar, as Amicus Curiae to ass(sic) the Court. Mr. T.V. Sivakumar

submitted that the appellant''s own daughter had spoken to the fact of the appellant leaving the matrimonial home several years back and in those

circumstances, what the lower Appellate Court had done was perfectly in order and the appellant would not be entitled to claim any maintenance

whatsoever.

I have been taken through the pleadings, the oral and documentary evidence and also the judgments of the courts below by the learned Counsel.

The trial court relied on the oral evidence of the appellant and that of one Kailasa Goundar, who was examined as P.W.2 in coming to the

conclusion that the respondent treated the appellant with cruelty and she had perforce to abandon the matrimonial home and live separately. The

only disturbing aspect of the whole case is the (sic)oral evidence of the daughter of the parties as D.W.1. The trial court rejected the oral evidence

of D.W.1 on the ground that she was at the mercy of her father, in that he had arranged for her marriage and had also supported her and her

evidence could not be termed to be impartial.

On the other hand, the lower Appellate Court relied on the oral and documentary evidence on the side of the respondent and came to the

conclusion that the case of the appellant had not been established and the respondent had proved that the appellant left the matrimonial home

without any justifiable cause. The lower Appellate Court, in particular, relied on the evidence of the daughter as D.W.1 and one Periya Goundar as

D.W.3. who had deposed to the effect that the appellant left the respondent''s roof about 14 years prior to his giving evidence before court.

On going through the judgment of the (sic)wer Appellate Court, I find that the learned subordinate Judge has not at all adverted to the evidence

of P.W.2 Kailasa Gounder. He has merely stated in the course of the judgment as follows:

The trial court has not appreciated the evidence (sic)et in on both sides in proper perspective and in my view, the evidence of the plaintiff as

P.W.1 and that of the witness Kailasa Goundar as P.W.2 cannot at all be accepted as true. On the other hand the evidence of the plaintiffs own

daughter Saraswathi as D.W.1 and the defendant as D.W.2 and one Periya Goundar as D.W.3 must be accepted as true and it is in consonance

with the facts and circumstances of the case.

Nowhere in the course of the judgment there is reference to and discussion of the evidence of P.W.2. P.W.2 has corroborated the evidence of the

appellant as P.W.1. According to P.W.2, he along with one Muthu Goundar approached the respondent to settle the dispute between the

appellant and the respondent and the respondent refused to abide by their advice and in fact, the respondent threatened the appellant that he would

maim her. No tenable reason has been assigned by the learned Subordinate Judge for rejecting the evidence of P.W.2. In fact, as already stated,

he has not at all referred to what P.W.2 said in the course of his evidence. He has been carried away by the fact that the daughter has supported

the father and therefore, there should be truth in the case of the respondent. I do not agree with the finding reached by the lower Appellate Court

ignoring the material evidence on the side of the appellant regarding the ill-treatment meted out to her and the threat to her life by the respondent.

There is, therefore, justification in the complaint of the learned Counsel for the appellant that the lower Appellate Court, in the absence of special

features about the evidence of a particular witness, which had escaped the trial Court, had erred in concluding against the appellant. The learned

Counsel on either side cited several decisions under the Hindu Adoptions and Maintenance Act and the Hindu Marriage Act.

The first of the decision is the one reported in Madhukar Akhand Vs. Bhima Akhand and Others, . The Bombay High Court held as follows:

The right to maintenance even in the household of a husband where the husband neglects or does not provide maintenance to his wife is conferred

by Sub-section (1) of Section 18of the Hindu Adoptions and Maintenance Act (Act 78 of 1956). It is not necessary for the operation of Sub-

section (1) of Section 18 that wife must be also entitled to live separately in the circumstances provided under Sub-section (2). The liability to

maintain is spelt out by Section 18(1) and is absolute and is not subject to any conditions excepting so far as may be provided by Sub-section (3).

In Deivani Ammal and another v. Subbiah Pillai (1984 I MLJ 267), Sengottuvelan, J. while dealing with the maintenance claim of a wife in

common law held that,

the wife had a cause of action for maintenance under the common law if there was desertion on the part of her husband or cruelty which entitled

her to live separately. If the wife failed to establish that she had got the right, then she was not entitled to maintenance under common law.

However, the Court exercising jurisdiction under the provisions of the Hindu Marriage Act was empowered to allow permanent alimony to a

divorced wife.

In that case, there was a decree for restitution of conjugal rights. The wife did not comply with the decree. This was followed by a decree for

divorce. The learned Judge held that she had got cause of action under the common law to get maintenance from the husband. However, she

would be entitled to claim maintenance under the provisions of Hindu Marriage Act. The remedy under the Hindu Marriage Act was left open.

In Rajagopalan v. Kamalammal (1981 II MLJ 359 = 94 L.W. 695) Ramanujam, J. held that,

permanent alimony could be granted even to an erring spouse and that the fact that the wife was a guilty spouse could only be taken as a relevant

factor in assessing the conduct of the parties and in determining the amount of permanent alimony.

In Laxmi Sahuani Vs. Maheswar Sahu, a Bench of the Orissa High Court held that.

a wife would lose her right of maintenance if she lived separate from her husband without the existence of any of the grounds of reasons mentioned

in Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act.

In A. Bhagavathi Ammal and Others Vs. Sethu, Swamikkannu, J, held that, if one spouse, by words and conduct compelled the other to quit

the matrimonial home, the former would be guilty of desertion though it was the latter who had physically separated from the other and left the

matrimonial home and the spouse responsible was guilty of constructive desertion.

In Raghavan Radhakrishnan Vs. Sathyabhama Jayakumari and Another, a Full Bench of the Kerala High Court dealing with Section 18(2)(a)

of the Act held that ""to constitute desertion under Clause (a) of Sub-section (2) of Section 18, the wife who had been deserted was required to

prove the factum of desertion only and that it was not necessary for her to further prove the existence of animus deserendi"". The Full Bench went

on to say as follows:

If the Courts insist on the proof of animus on the part of the husband to desert his wife, as a requirement preceding to the claim for maintenance

by the Hindu wife, deserted and neglected, that would not only run counter to the spirit and object of the provisions of a beneficent legislation, but

also would amount to retracting from the path of social justice which under the Constitution, the Courts are boun(sic) to advance.

In the course of the judgment, the Full Bench also referred to Halsbury''s Laws (sic) England, Fourth Edition, Volume 13, page 291 para 585

wherein it is stated:

desertion is not to be tested merely by ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other

to leave home, it may be that the spouse responsible for the driving out is guilty of desertion; so, for example, if a husband without just cause or

excuse persists in doing things which he knows his wife would probably not tolerate, and which no ordinary woman would tolerate, and then she

leaves, the husband would have deserted her whatever her desire or intention may have been.

In Jayakrishna Panigrahi Vs. Smt. Surekha Panigrahi, cited by Mr. T.V. Sivaleumar, the husband by his conduct refused to lead marital life

with wife and filed a petition for divorce and in the attempt of resisting the petition, the wife made allegations against the husband. It was held that

the wife caused mental cruelty to husband and the husband would be entitled to a decree for divorce. However, in the circumstances of the case it

was held that the wife would be entitled to grant of maintenance u/s 25of the Hindu Marriage Act.

No doubt, in Chandrika Vs. M. Vijayakumar, a Division Bench of this Court consisting of A. Abdul Hadi, J. and P. Sathasivam, J, held that

the party justifying desertion has to prove instances of harassment or ill-treatment and mere statement would not suffice.

In the instant case, it has already been noticed that the appellant and her witness P.W.2 had spoken to the cruel treatment meted out to the

appellant by the respondent and the trial court had taken this into consideration in preference to the evidence of the daughter as D.W.1 and the

other witnesses on the side of the respondent. As already found, the lower Appellate Court has not discussed the evidence of P.W.2 at all and has

not given any reason for not either considering or rejecting the evidence of P.W.2. In these circumstances, the decision of the lower Appellate

Court allowing the appeal and dismissing the suit cannot stand.

There is also absolutely no justification on the part of the lower Appellate Court to have reduced the quantum of maintenance awarded to the

appellant, Even in the year 1979 a sum of Rs.100/- per month would have been grossly inadequate to keep the wolf out of the door and the

reduction of Rs.40/- by the lower Appellate Court was wholly unwarranted. Consequently, the substantial questions of law raised are answered in

favour of the appellant and as against the respondent and the Second Appeal will stand allowed. The decree and the judgment of the lower

Appellate Court are set aside and those of the trial court restored. However, there will be no order as to costs. I have to place on record the able

assistance rendered by Mr. T.V. Sivakumar as Amicus Curiae in the case.