Vasantha vs M.S. Nallasamy and 2 others

K. Natarajan, J.—These Second Appeals have been preferred against the judgment and decree, dated 4.8.1988 passed in A.S. Nos. 86 of

1987 and 176 of 1987 on the file of the Principal District Judge, Erode reversing the judgment and decree awarding maintenance and creating a

charge over the A schedule property, dated 24.12.1986 passed in O.S. No. 98 of 1984 on the file of the Subordinate Judge, Gobichettipalayam

and confirming the disallowed portion of the decree respectively. In these appeals, the appellant wife will be referred to as the plaintiff and the

respondent husband will be referred to as the defendant.

The Plaintiff instituted the suit O.S. No. 98 of 1984 on the file of the Subordinate Judge, Gobichettipalayam for maintenance at the rate of Rs.

500/ per month and for a house rent of Rs. 100/- per month and for recovery of B to D Schedule or their value and for creating a charge over the

''A'' schedule for the due payment of maintenance on the allegation the defendant married her three years prior to the suit and the marriage was

celebrated at Mettur in her parents'' house. After the marriage, the plaintiff was living in the house of the husband. Within three months of the

marriage, her husband began to ill-treat her by beating and compelled her to get more dowry from her parents. As substantial presents were given

at the time of marriage itself, she refused to go to her parents'' house to get more dowry. Ultimately, her husband drove her from his house and

without finding any alternative, the plaintiff went to her parents'' house and informed them the ill-treatment meted out to her. In the year 1983, a

panchayat was convened in the presence of village elders and on the assurance given by her husband that he would treat her kindly and there will

not be any ill-treatment, she went to her matrimonial home and once again began her married life. However, on the pretext she did not conceive

she was again ill-treated and was compelled to get more dowry. Her mother-in-law took her from the fields to the house and removed the jewels

worn by her. The vessels worth Rs. 2000/- and a buffalo valued Rs. 700/- presented to the plaintiff were also appropriated by her husband. On

30.9.1983, the plaintiff gave a complaint in the Gobichettipalayam Police Station. Even though the husband promised in the police station that he

would take her to his house and treat her affectionately, he did not do so. The plaintiff is living in her parents'' house and they find it difficult to

maintain her with their meager income. Therefore, she was compelled to file the suit to get maintenance at the rate of Rs. 500/- per month and Rs.

100/- as house rent and recover possession of the ''B'' schedule jewels, the ''C schedule vessels and the ''D'' schedule cattle and also past arrears

of Rs. 4,140/-.

The defendant resisted the suit stating within three months of the marriage, the plaintiff began to visit her parents'' house very often. She also

took away jewels worth Rs. 20,000/- given to her by the husband and kept the same in her parents'' house and refused to bring them. She told

before the panchayatdars she is not willing to live with the defendant and also refused to bring the jewels presented to her by him. For discharging

the loan borrowed for celebrating the marriage, 55 cents of land was sold by the defendant and some other item was mortgaged to raise a loan.

The allegation that the defendant had mortgaged and sold the lands in favour of his sister to defeat the rights of the plaintiff to gel maintenance is not

true. The plaintiff is having illicit intimacy with one Subramaniam. The plaintiff alone deserted and left the matrimonial home and, therefore, she is

not entitled to any maintenance.

On the above pleadings of the parties, the learned Subordinate Judge, Gobichettipalayam framed the necessary issues. On a consideration of the

evidence placed before him, the trial Judge concluded that the ill-treatment alleged by the plaintiff is true and that she had been driven out of the

matrimonial home and was entitled to maintenance. He directed the defendant to pay maintenance of Rs. 150/- p.m. and Rs.50/- towards house

rent and also created charge on the ''A'' schedule property and dismissed the suit in other respects.

Aggrieved with the above judgment and decree of the trial court, the defender; preferred A.S. No. 86 of 1987 what A.S. No. 176 of 1987 was

preferred by the plaintiff regarding the disallowed portion of the relief prayed by her. The learned Principal District Judge, Erode took both the

appeals together and by his common judgment dated and for the reason assigned by him in the judgment, allowed A.S. No. 86 of 1987, set aside

the award of maintenance granted by the lower court. He also dismissed A.S. No. 176 of 1987.and confirmed the judgment and decree of the trial

Judge, the correctness of which is being challenged by the plaintiff in these Second Appeals.

The points for determination are.

1) Whether the first appellate Judge committed an error in reversing the judgment and decree of the trial Court awarding maintenance and creating

charge over the ''A'' schedule property on no evidence? and

2) Whether the first appellate Judge is not justified in disallowing the appeal in respect of the disallowed portion of the relief prayed for by the

plaintiff in the suit?

Points No. 1 and 2. The learned counsel for the appellant/plaintiff strenuously contended that the trial Judge had given cogent, convincing and

satisfactory reasons for reaching the conclusion that the plaintiff had been ill-treated by her husband and her mother-in-law and they continued to

ill-treat the plaintiff after she joined with him after the panchayat and compelled her to get more dowry from the parents'' house and they did not

mend their ways even after the conciliation talks in the police station and the first appellate Judge has committed a grave error in rejecting the

reasons given by the trial Judge by his sweeping remark that the evidence of the plaintiff wife is not believable without assigning any reason as per

law. It was also submitted the first appellate Judge did not appreciate the evidence with an open mind and due to the reason the mother of the

plaintiff was not amenable to the compromise proposal suggested by him (first appellate Judge) in the open Court, he had reversed the judgment

and decree of the trial Court awarding maintenance of Rs. 150/- per month and Rs. 50/- towards house rent and creating a charge over the ''A''

schedule property for the due payment of the said amounts. It was further submitted the trial Judge ought to have believed the evidence of the

plaintiff that vessels, jewels and buffalo as described in schedules ''B'' to ''D'' in the plaint have been appropriated by the husband and he should

have also directed recovery of those items or in the alternative their value by the plaintiff and the first appellate Judge is not justified in disallowing

that portion of the relief prayed for by the plaintiff in the appeal.

I have carefully analyzed the oral and documentary evidence adduced by both the parties in the trial Court and considered the same carefully. I

am of the view the plaintiff had given satisfactory and convincing evidence that she had been beaten and ill-treated by the husband within three

months of the marriage and was compelled to go to the matrimonial home and bring more dowry. It is also made out from the evidence of the

plaintiff that after the talks before the panchayatdars and on the assurance of the husband, the plaintiff went to the matrimonial home with fond hope

she would be treated kindly but within a short time, her expectations became untrue and once again she had been beaten by the husband and her

mother-in-law and she was driven out of the house without finding any other alternative, the plaintiff went to her parents'' house. I am also satisfied

that even though the defendant husband promised in the police station during the conciliation talks that he would not ill-treat his wife thereafter and

she would be looked after affectionately, he did not stick to his words or took the plaintiff to his house and continued his married life. On the other

hand, he did not take his wife and left her to remain in her parental home without caring for her and completely neglected to maintain her. Even

though the defendant husband has alleged the wife is having illicit intimacy with one Subramaniam, he did not choose to adduce satisfactory and

convincing evidence that there is any such illicit relationship or the wife deserted him intentionally and went to her parents'' house and I am satisfied

the plaintiff is entitled to maintenance.

A perusal of the judgment of the first appellate Judge shows, that no reasons have been given for disbelieving the evidence of the plaintiff. In my

opinion, for the events that happened in the matrimonial home which is a different village, it is unreasonable for the court to expect independent

evidence. In matters of this sort where ill-treatment and cruelty are alleged by the husband, the persons belonging to the matrimonial home would

not be prepared to give evidence on behalf of the wife and even the neigh bourse would be highly hesitant to support the case of the wife as she is

a stranger. However, I hasten to add that the evidence of the wife need not be accepted on its face value and it has to be tested on the touchstone

of cross-examination. An impartial, in depth analysis of the evidence of the plaintiff shows that she had been beaten and ill-treated by the husband

and mother-in-law and the allegation of unchastely had been attributed to her without any basis. The defendant husband had not alleged that she is

having illicit intimacy with one Subramaniam in his reply notice but developed such a case only during his evidence in the Court. There is absolutely

no need for a Hindu wife to allege ill-treatment and cruelty against the husband when in reality he is kind and affectionate towards her and therefore

I am clearly of the view that the first appellate Judge has committed a grave error in disbelieving the evidence of the plaintiff regarding ill-treatment

and demand of more dowry.

So far as the appropriation of the vessels, jewels and also the buffalo valued at Rs. 700/-, I am of the opinion the trial Judge is correct in his

observation that there is no acceptable evidence to show that vessels and jewels have been appropriated. However, I am satisfied that a buffalo

presented to the wife by her parents had been appropriated by the husband and she is entitled to recover the buffalo or its value of Rs. 700/-.

Now we have to find out what will be the reasonable maintenance that has to be awarded to the plaintiff wife. As per the evidence adduced by

the plaintiff, the husband is owning 50 cents of nanja in which crops are harvested twice a year. Further, he is also having I acre and 10 cents of

dry land with a pump set. From the above lands he is getting an average income of Rs. 10.000/- to Rs. 15.000/- per year. The learned trial Judge,

on a consideration of the evidence, found the defendant husband had executed a sale deed in favour of his sister, the second defendant for Rs.

20.000/- in respect of one of the items of land and he had mortgaged the other item of land for Rs. 10,000/- in favour of third plaintiff, his brother

which have been done after the plaintiff filed the suit for maintenance and that the defendant husband had intentionally done so to defeat the rights

of the plaintiff to get maintenance. Even though it is deposed on behalf of the husband that he gets only an income of Rs. 1500/- per year from the

lands, the learned District Munsif rightly disbelieved the same. Further, the argument advanced on behalf of the defendant husband, his wife is

supported by her parents is also unacceptable. In the decision reported in 1999 (III) M.L.J.685. (Ramadas Matathi), a learned Judge of this Court

after reference to the decided cases on this point held when a wife, comes forward with a claim that she is unable to maintain herself, it is for the

husband to prove the contrary. The wife getting support from her parents'' is not a ground to reject her claim for maintenance and that wife is

entitled to live according to the status of the husband. So far as the quantum of maintenance to be awarded, the Supreme Court of India in the

decision reported in Smt. Jasbir Kaur Sehgal Vs. District Judge, Dehradun and others, has held:

No set formula can be laid for fixing the amount of maintenance. It has, in the very nature of things, to depend on the facts and circumstances of

each case. Some scope for leverage can, however, be always there. The court has to consider the status of the parties, their respective needs, the

capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and

statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable

comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped

in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.

The question then arises as to from which date the wife would be entitled to claim the enhanced amount of the maintenance pendent elite. If the

wife has no source of income it is the obligation of the husband to maintain her and also the children of the marriage on the basis of the provisions

contained in the Hindu Adoptions and Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for

divorce under the Act. Having thus fixed the date as the filing of the petition for divorce, it is not always that the Court has to giant the maintenance

from that date. The court has discretion in the matter as to from which date maintenance u/s 24 of the Act should be granted. The discretion of the

Court would depend upon multiple circumstances, which are to be kept in view. These could be the time taken to serve the respondent in the

petition; the date of filing of the application under Sec. 24 of the Act; conduct of the parties in the proceedings; averments made in the application

and the reply there to; the tendency of the wife to inflate the income out of ail proportion and that of the husband to suppress the same; and the

like. There has to be honesty of purpose in both the parties which unfortunately we find lacking in this case...

(Italics supplied).

On a careful analysis of the evidence on record, I am satisfied that the first appellate Judge had committed a manifest error in holding the mother of

the plaintiff had detained her in her house and instigated her to file the petition for maintenance. On the other hand, it is clear because of the ill-

treatment and beating by the husband, the plaintiff was compelled to leave the matrimonial home and seek asylum, in the house of her parents and

learned sub-Judge is correct in his conclusion and the first appellate Judge ought not to have interfered in the said finding and set aside the order of

maintenance. However, I am of the view that the award of maintenance of Rs. 150/- per month and Rs. 50/- towards house rent is not sufficient

and adequate, considering the abnormal rise in prices of the essential commodities and clothing material. I am also satisfied the husband had

executed the sale deed and mortgage deed only to defeat the rights of the plaintiff for maintenance and he will be getting not less than Rs. 7,500/-

per month as income from his landed properties. In my opinion, a sum of Rs.275/- per month and Rs. 75/- towards house rent allowance would

be reasonable maintenance and the order of the learned District Munsif has to be modified to that extent and that of the learned first appellate

Judge has to be set aside.

In the result, S.A. No. 1510 of 1988 is allowed and the judgment and decree of the learned Principal District Judge, Erode in A.S. No. 86 of

1987 are set aside and that of the learned subordinate Judge, Gobichettipalayam are restored, with the modification that the appellant wife is

entitled to a decree for maintenance of Rs. 275/- per month and Rs. 75/- towards house rent allowance. There shall be a charge over the ''A''

schedule properties for the due payment of maintenance amount as ordered by the learned Subordinate Judge. The appellant wife is entitled to

costs throughout. S.A. No. 1511 of 1988 is allowed in part and the judgment and decree of the learned Principal District Judge, Erode in A.S.

No. 176 of 1987 are set aside and the judgment and decree of the learned Subordinate Judge, Gobichettipalayam is modified to the extent that the

appellant wife is entitled to recover the buffalo or its value of Rs. 700/- claimed by her and in other respects, the disallowed portion of the decree

so far as the vessels and jewels are confirmed. The appellant/wife is entitled to proportionate costs throughout.