Sri A.V. Prakash vs Rathna @ Lakshmi

N. Kumar, J.—This is husband''s appeal against the judgment and decree dated 31.5.2011 passed in O.S.No. 8/2009 by the trial Court, enhancing the maintenance from Rs. 2,500/- to Rs. 5,000/-

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The plaintiff is the wife of the defendant. The wife filed O.S.No.88/1998 against the husband for maintenance. The said suit was contested. After trial, by a judgment and decree dated 15.12.2001, the plaintiff was awarded a maintenance of Rs. 2,500/- p.m. Aggrieved by the said judgment and decree, the husband preferred an appeal to this Court in MFA No. 1040/2001, which came to be dismissed by a order dated 5.8.2002. Thus, the said maintenance decree has attained finality. As is clear from the case number, the suit was filed in the year 1998, After a decade, the wife filed the present suit claiming Rs. 40,000/-towards medical expenses and for maintenance at the rate of Rs. 5,000/- p.m. In other words, she sought for enhancement of maintenance from Rs. 2,500/- to Rs. 5,000/- Again the matter was contested. The husband contended that he has a father aged about 95 years to look after, he is retired from service and he is drawing a pension of Rs. 10,000/- p.m. and that he had two properties. One property is gifted to his two major sons who are carrying on the business in the said premises by running a Music Studio. He sold another property and paid the cash to his two sons to set-up the Studio. Therefore, it is contended that he is not in a position to pay Rs. 5,000/- p.m. to the wife.

The trial Court on aforesaid pleadings, framed the following issues:

i) Whether the plaintiff proves that, the maintenance awarded at Rs. 2,500/- per month in O.S.88/1998 on the file of this Court is meager and not sufficient for her to look after her growing medical needs and personal expenses and she needs maintenance at enhanced rate?

ii) Whether the plaintiff further proves that, she had spent Rs. 40,000/- towards her hospitalisation and she is spending Rs 5,000/- per month towards her maintenance and the defendant is liable to pay the said amount towards her maintenance together with enhanced maintenance as prayed for?

iii) Whether the plaintiff further proves the defendant is capable of giving her maintenance at enhanced rate?

iv) Whether the defendant proves that, he being a retired bank employee is getting meager pension which is not sufficient for him to look after himself and his medical expenses together with the medical expenses of his aged father and hence, he is incapable of giving maintenance to the petitioner at enhanced rate?

v) For what Decree or Order?

The plaintiff examined herself as PW-1 and produced six documents, which are marked as Exs.P-1 to P-6, The defendant was examined as DW-1 and he has produced sight documents which are marked as Exs.D-1 to D-8.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record, held that payment of Rs. 2,500/- as maintenance is meager and not sufficient to look after the plaintiff, in particular, the growing medical needs and personal expenses and accordingly, it field that the maintenance requires to be enhanced. The trial Court also held that the wife has spent about Rs. 40,000/-towards medical expenses and that she is spending about Rs. 5,000/- towards her maintenance over a month. The trial Court also held that the defendant is capable of giving her the maintenance at the enhanced rate and has recorded a finding that the defendant has failed to establish his case that he is a retired Bank employee and that he is getting meager pension and it is not sufficient to look after hint his medical expenses and the medical expenses of his aged father and therefore, it proceeded to pass the judgment and decree enhancing the maintenance from Rs. 2,500/- p.m. to Rs. 5,000/- p.m. and also awarded a sum of Rs. 5,000/- towards costs of the proceedings and directed that the maintenance at the enhanced rate is payable from the date of the suit during the lifetime of the wife.

Aggrieved by the said judgment and decree of the trial Court, the husband has preferred this appeal.

Learned counsel, assailing the impugned judgment and decree, contended that may be with the passage of time and cost of living going up, it is not possible to state that the demand for enhancement of maintenance amount to Rs. 5,000/- is unreasonable., but the husband is unable to pay the enhanced maintenance as he has to take care of his aged father and his only source of income is pension at the rate of Rs. 10,000/- Therefore, learned counsel submits that the judgment and decree requires to be interfered with.

We do not find any substance in the said contention. The evidence on record shows that the husband owned two valuable immovable properties. He has gifted one property to his two major sons who are living with their wife and children. He sold another item of the immovable property and gave cash to his two married sons to set-up a Music Studio. In other words, when he owned two irremovable properties and he is magnanimous enough to give to his sons who are married and living with their wife and children for establishing a Music Studio but unfortunately he is not showing even an iota of that affection and responsibility towards his wife. Really it is appreciable that he is taking care of his father who is aged 95 years, but unfortunately cue same concern is not shown to his wife who is also getting aged like him. Rs. 2,500/-- was fixed as maintenance in a suit filed in 1998.

The present suit is filed in 2009, after a decade. Having regard to the cost of living, the fact that the respondent-wife is getting aged and she has to take medical treatment which is clearly demonstrated by the evidence on record, her claim for additional amount of 2,500/- is just and reasonably. Admittedly, the husband is getting a pension of Rs. 10,000/-. If that amount was not sufficient for him to take care of his father, he would not have parted with valuable property by way of gift and sale to take care of his children. The reason appears to toe very clear that if those properties continue to stand in his name, the wife may put forth her claim in them. He admits that he has gifted one immovable property and sold another immovable property and entire cash is paid to his sons, the story which is difficult to digest. The trial Court, on appreciation of the entire material on record, has rightly held that the husband who is capable to taking care of not only his aged father but also his grown-up major sons, their wife and children and providing for their business, can certainly take care of his wife also. The trial Court is justified in enhancing the maintenance from Rs. 2,500/- to Rs. 5,000/- from the date of the suit. We do not see any infirmity in the order passed by the trial Court, which fails for interference. Accordingly, appeal is dismissed. Consequently, applications filed for condonation of delay it filing the appeal and stay are also dismissed as having become infructuous.