Sivakami Ammal vs Bangaruswami Reddi

Panchapakesa Ayyar, J.—This is a petition by one Sivakami: Animal against her husband, Bangaruswami. Reddy, who has obtained a

decree for dissolution, against her in the Court of the Subordinate Judge of Salem, for giving her Rs. 100 a month as maintenance during the

pendency of her appeal and Rs. 350 for her expenses in prosecuting the appeal. The petition has been made u/s 5(7) of Madras Act 6 of 1949. It

is opposed vigorously. The respondents'' contentions are five, and I shall consider them ''seriatim'' below.

The first is that the petitioner has deserted the respondent, and that the respondent will only be too happy if she were to live with him and to give

him the conjugal rights lie is entitled to, and that therefore a woman like that should not be given relief u/s 5 (7). I am afraid that contention cannot

be upheld in this petition because Section 5 (7) does not entitle the Court to go into an enquiry as to the moral merits of the husband and wife ''inter

se'' in a summary petition like this.

The second contention was that the petitioner has ceased to be a wife the moment the lower Court passed the decree for dissolution of her

marriage with the respondent, and that it is only a ''wife'' who can apply for the relief u/s 5 (7) and so she cannot be given any relief. The argument

is extremely ingenious but wholly unconvincing. Under our law, no order of, any Court is final, until the last appeal, revision or review, or writ,

allowed by law and filed in lime, is decided. Therefore the lower Court''s order dissolving the marriage is held in suspension during the pendency of

the appeal, and the petitioner''s status as wife has not ceased, as is argued. Under our law, certain phrases are used which have got wider

implications than they bear if literally interpreted. Thus, a man in continuous possession of land which became ''ryoti'' land after the coining into

operation of the Madras Estates Land Act or the amending Act of 1936 has been deemed to be in possession of ryoti land though at the time the

possession began it had not become ''ryoti'' land. The Privy Council and several High Court decisions are to that effect. They interpret the term

ryoti"" as land which would be ryoti land under the Act subsequently passed. So too, the word ""wife"" in Section 5 (7) must mean a person who

would have been a wife but for the decree of divorce or dissolution passed in the trial Court. Else, much of. the meaning and content of Section 5

(7) (c) will be taken away, and Section 5 (7) (c) will remain an attenuated and anaemic provision.

The third contention was that the petitioner did not apply for maintenance or legal expenses in the lower Court and so should not be given any

now. But that fact will not prevent her from applying for the same in appeal. The respondent should be glad that he escaped paying maintenance

and legal expenses, in the lower Court. That he escaped once will be, of course, no reason why he should escape continually, in the absence or

limitation, abandonment, waiver, agreement etc., none of which have been proved.

The fourth contention was that the petitioner''s father has been maintaining the petitioner and meeting her legal expenses so far, and that he can

easily do so even hereafter. Under the Hindu Law, there is no obligation on the part of a father to maintain his married daughter and meet her legal

expenses in divorce and dissolution petitions, and he cannot be compelled to do so, even if he is able to do so. So too, a maintenance petition by a

wife cannot be dismissed, because her father, brother and other relatives are rich enough to maintain her. Hence this contention too fails.

The fifth contention was that the respondent was only getting Rs. 350 per year as income from his property, and that in these hard days it would

be hardly sufficient to maintain himself, and would leave nothing to give the petitioner for maintenance or legal expenses. The learned counsel for

the petitioner says that the income of the respondent would be Rs. 6500 per year. There is no sufficient evidence to find out what the actual income

is; nor is it necessary to find it out. Doubtless, the truth lies in between the two extremes. Even a poor Hindu husband has, according to me, a

liability u/s 5(7) to the extent of his ability.

After considering all the representations on both sides, I direct the respondent to pay the petitioner''s counsel Rs. 100 within a month from today

for meeting the expenses of the appeal, and a lump sum of Rs. 250 for the petitioner''s maintenance within a month thereafter. The C. M. A. will be

posted to the third week of April 1954 as prayed for by both sides. As undertaken by Mr. Ramaswami Aiyangar, his client will type the papers

necessary for the appeal, and printing is dispensed with.