P.P. Ranganayaki and Another vs P.P. Govindachary

G. Radhakrishna Rao, J.

The first plaintiff is the wife of the defendant. Plaintiff No. 2 is the son of the defendant and plaintiff No. 1. Plaintiff No. 1 filed a suit for maintenance, past and future, for herself and also for her minor son at the rate of Rs. 500/- and Rs. 200/- respectively and also for return of the jewellery. It is stated the jewellery consists of 15 sovereign of gold in two items--three bangles and one chandraharam, and with regard to silver jewellery it consists of silver items of 300 tolas. The marriage between plaintiff No. 1 & the defendant took place on 18-11-1983. From 30-4-1984 they were living separately. By that time plaintiff No. 1 was pregnant. She gave birth to a male child on 26-8-1984. The husband sent a lawyer''s notice on 10-8-1984 followed by a reply. Thereafter, he filed O.P. No. 235 of 1985 u/s 9 of the Hindu Marriage Act for restitution of conjugal rights. The present suit was subsequent to O.P. No. 235 of 1985. Subsequently the defendant, with the permission of the Court, withdrew the application filed u/s 9 of the Hindu Marriage Act and filed and application u/s 13 of the Hindu Marriage Act which is numbered as O.P. No. 16 of 1987 and this was filed on 2-2-1987. The grounds on which the said application was filed, are cruelty and desertion. Both the matters were clubbed together and they were disposed of by a common order. The Lower Court found the plea of the husband with regard to cruelty and desertion as correct and having found so it granted decree for maintenance to the extent of the minor boy only. Being dissatisfied, the wife filed C.M.A. No. 1125 of 1991 in this Court against the order granting decree for divorce. She also filed an appeal in the Court below and the same has been withdrawn and numbered as Tr.A.S. No. 926 of 1992 in this Court. Reconciliation efforts have been made during the time of the trial and also in this Court when this matter has come up before another Bench and they have failed. It is an admitted case now that the husband had married again. The assertion of the husband is that wife also married again. Out there is no positive proof. It is left in doubt. We appreciate if she married again and we welcome the proposal of marrying again as the young lady should not be allowed to be free particularly when she is doing some job which may give rise to some rumours from different quarters.

The minor boy is living with his mother and he had no occasion to see the face of his father and the father also had no occasion to see the boy. On one time, though permission was sought to see the boy and the Court granted the same, according to the wife, be has not cared to see the boy. In this manner each is asserting cruelty against the other. On different aspects the gulf has been widened so much that it has become impossible for any one to reunite them. The allegations levelled by each other are only minor in nature and they are common and happen in every family that too in the beginning. Instead of paving way for reuniting them, the circumstances made them to live apart and the fact that the husband married again ultimately widened the gulf more than what is naturally expected.

Since the Lower Court has accepted on the ground of cruelty and also of desertion we feel that that finding may not be interfered with in view of the subsequent change of circumstances. On appreciation of evidence also we confirm the decree for divorce. Therefore, C.M.A. No. 1125 of 1991, filed by plaintiff No. 1 against the order of divorce, is dismissed.

Coming to the return of jewellery, we have gone through the entire evidence and we feel that what is stated by P.W. 1 about taking of the jewellery appears to be not correct. The gold jewellery consists of only two items in the present case. Normally the bangles will be worn by ladies and chandraharam also will be worn on certain occasions and generally it will not be kept with the mother-in-law who is residing at a far off place. Husband is also employed and young in age. Naturally when chandraharam is the only ornament available, she will wear it or keep it with her when they are residing at a different place. If the ornaments are more in number which will not be worn in regular course, definitely there will be a doubt whether some of the ornaments which are not being regularly used or used only on festive occasions are kept with the in-laws. But in this case as there are only two items i.e. bangles and chandraharam, we feel that the allegation of the wife with regard to gold jewellery cannot be accepted.

Coming to the silver articles, these persons belong to Ayyangar community. In Brahmins these silver items will be customarily given at the time of marriage. After the marriage generally they will be kept with the in-laws but not with the parents of the lady. So, the possibility of giving those silver ornaments at the time of marriage cannot be ruled out. For that we have two witnesses. They stated they could see the articles which were displayed at the time of marriage. The display also is an usual thing. Out they may not be in a position to know the weight of the articles. However, the articles tint are displayed can be noticed by them. Therefore, we feel that the possibility of keeping these silver articles with the in-laws of the lady when these two young peoples were living separately at a far off place cannot be ruled out. The possibility of these silver articles being taken to Visakhapatnam has to be ruled out as the possibility of keeping them at the in-laws house as a safer place cannot be ruled out. The version of P.W. 1 that these silver articles are kept with the in-laws appears to be a reasonable one. Whether this general conclusion or discussion that has been made by us, with regard to the articles being kept at particular place, is correct or not, has to be assessed with reference to the evidence. Ex. A-4 is a list of the articles. There is no signature on it. The husband''s version is that it was prepared at the time of his sisters''s marriage. To our mind it appears to be not correct. P.W. 1 in specific terms stated that it was prepared at the time of her marriage. Now we come to the evidence of D.W. 1. D.W. 1 admitted the fact of giving Ex. A-4 to P.W. 1''s father. He stated "I was not present at the time when there was discussion with regard to giving of articles by way of gifts and also the amount to be given at the time of marriage. I have no personal knowledge that the father of the plaintiff told that he will give only 10 sovereigns of gold and 200 tolas of silver as he has celebrated his another daughter''s marriage and incurred some expenditure towards it. It is not true to say that my father insisted to give all articles mentioned in Ex. A-4. But that Ex. A-4 is in the handwriting of my father. Ex A-11 is the letter written by my father to the plaintiff''s father. It is not true to say that my father did not give the gold bangles to the plaintiff and the father of the plaintiff gave the same. I have no knowledge what the father of the plaintiff gave all the articles mentioned in Ex, A-4." Because he is the person on record he wants to deny the same. Exs. A-5 to A-7 are the receipts obtained at the time of preparing gold jewellery and silver articles. Exs. A-8 to A-11 are the letters written by the respondent''s father. In the cross-examination P.W. 2, father of plaintiff No. 1, stated that Ex. A-4 does not contain the signature of his Viyyanka, He is very fair enough. But by the correspondence between the father of the plaintiff and the father of the defendant at the time of marriage it can be said that Ex. A-4 was given before the marriage with a demand that the articles mentioned therein have to be given and that those articles were handed over. Even coming to the evidence of P.Ws. 1 and 2 on this aspect, we are of the firm opinion that their case is consistent with regard to the entrustment of the silver articles. The husband examined two witnesses. They have gone to the extent of saying that plaintiff No. 1 had taken away the articles in throe gunny bags. Their versions are interested. The best person to deny Ex. A-4 is the father of the defendant. He has not chosen to come to the box. Perhaps he might have feared of prosecution under the Dowry Prohibition Act for taking dowry in the form of these articles. The father of the defendant not coming into box to deny Ex. A-4, the follow up action and the correspondence made us to feel that 300 tolas of silver articles are with the husband and his people alone. Therefore, the husband is liable to return that 300 tolas of silver in the form of a consolidated block as the possibility of returning the same articles at this stage may be ruled out as it is very difficult for the plaintiff to remember or explain.

Coming to the maintenance it has to be borne in mind that from the date of the birth of the child the defendant has not seen the boy. Father has a right to the custody of the male child. But paramount consideration is the welfare of the minor child. When the child born on 22-6-6-1984, the defendant gave a lawyer''s notice. That itself shows that he is not interested in the child and is interested only to get over the marriage. No sensible husband will choose that particular time to give notice. This shows the mind of the husband to harass the wife as far as possible and put them into trouble. He pleaded in his evidence that when he sent gifts to the boy the same were returned. When he has not seen the boy and has not shown the father''s affection towards the boy there is no meaning in sending gifts. What all the son expects is the affection but not gift parcels. Even when the Court granted permission he has not seen the boy. When the boy underwent an operation also he has not seen the boy. Therefore, we feel that even though the father is entitled to the custody of the boy, as he married again and as there is the possibility of the step-mother not looking after the boy and as his mother is the person that is bringing up the boy, the mother alone is the competent person in this case to have the custody of the boy in the interests of the minor boy.

The husband is drawing Rs. 2,000/- and it is very easy for him to spare Rs. 200/- towards maintenance of the boy. This is the amount claimed and the same is granted by the lower Court. Therefore, we do not want to interfere. It is left open to the minor boy to claim enhancement if he so advised.

So far as the maintenance to the wife is concerned, the marriage took place on 18-11-1993. Differences arose from 30-4-1984. If the desertion and guilty pleas are true, definitely the husband would not have chosen to file an application u/s 9 of the Hindu Marriage Act on 23-4-1985. So, till 23-4-1985 he wanted to have plaintiff No. 1 as his wife. But subsequently he thought it fit to withdraw the same and to convert the same into an application for dissolution of marriage in the year 1987. Therefore, the idea of taking the plea of desertion came into his mind in the year 1987. Therefore, the wife is entitled for maintenance. But she started earning as a teacher from 12-9-1985. We feel that till that date at least she is entitled to maintenance. Therefore, the wife is entitled for maintenance at the rate of Rs. 500/- per month from the date of their living separately i.e., from 30-4-1984 to 12-9-1985.

In the result, the father is not at all entitled for the custody of the minor child. The minor child shall be with the mother. The minor child is entitled for maintenance at the rate of Rs. 200/- p.m. with a right to claim enhanced maintenance if he is so advised. The wife is entitled for maintenance at the rate of Rs. 500/- p.m. from 30-4-1984 to 12-9-1985. The defendant-respondent shall pay the arrears of maintenance within a period of three months from the date of receipt of a copy of this order. The wife is entitled to return of 300 tolas of silver in the form of a block. The same shall be returned by the husband within a period of three months from the date of receipt of a copy of this order. C.M.A. No. 1125 of 191 is dismissed. Tr.A.S. No. 926 of 1992 is allowed to the extent indicated above. No. costs.