Vijayalaxmi vs Basavraj

B. Veerappa, J—Though the matter is posted for admission, by consent of the learned counsel for the parties to the lis, it is taken up for final hearing.

This is a defendant''s/respondent''s second appeal against the judgment and decree dated 05.12.2011 made in RA No. 9/2011 on the file of the Principal Senior Civil Judge, Bagalkot, modifying the judgment and decree dated 25.01.2011, made in OS No. 168/2009, on the file of the Principal Civil Judge (Jr. Dn.), Bagalkot, granting maintenance of Rs. 3,500/- to the plaintiff/wife from the date of the order and charge has been created over the property of the defendant bearing No. 36/1/1A measuring 2 acres 35 guntas and Sy. No. 36/1/1B measuring 2 acres 36 guntas, both situated at Murnal village of Bagalkot Taluka and a plot bearing No. 4 situated in RS No. 102/2 + 3 + 4 of Veerapura village, Bagalkot Taluk, to an extent of share of the defendant for maintenance claim of the plaintiff.

It is the case of the plaintiff that she is the legally wedded wife of the defendant/husband and their marriage took place on 04.05.2007 at Kudalasangama temple as per customs prevailing in their community. After the marriage, the plaintiff went to lead her martial life with the defendant at Veerapur Village in Bagalkot Taluka. After the marriage, both plaintiff and defendant led their marital life for about five to six months. Subsequently, the defendant and his mother started to give ill-treatment to the plaintiff. The defendant, at the instigation of his mother, was always used to force her to bring dowry by way of gold and cash from her parents house as they had not given any gold and cash at the time of marriage. The defendant and his mother for the purpose of dowry were not properly providing food to the plaintiff. The plaintiff tolerated all the illegal activities and also ill-treatment of the defendant, with the hope that the defendant in future may mend his behavior. Prior to the marriage of plaintiff with the defendant, defendant got married to one Savita of Ibrampur village, Bijapur Taluk. The said Savita of Ibrahimpur without tolerating the harassment of the defendant has committed suicide. The defendant is addicted to bad vices such as drinking alcohol and playing gambling and also became womanizer. The defendant had got the job on compassionate ground after the death of his wife Savita and the defendant by suppressing all the previous story of deceased Savita married with the plaintiff. The plaintiff came to know of the illegal activities of the defendant only after her marriage. The defendant started to ill-treat her and always used to abuse her in filthy language and also tried to kill the plaintiff with axe, but, with the interference of the neighbours, she was rescued. Therefore, the plaintiff went to her parents'' house at Bagalkot and started residing with them. She is having no means for her livelihood and contended that the defendant is serving in BTDA office as FDA and he is drawing handsome salary. The defendant has deserted the plaintiff without any just and proper cause and has neglected to maintain her. He is drawing more than Rs. 12,000/- p.m. salary and is also having landed properties, getting income of Rs. 2,00,000/- per annum and plaintiff is required minimum of Rs. 5,000/- per month for her maintenance for food, shelter and medical expenses, etc.

The defendant filed written statement, except admitting the relationship with the plaintiff, denied all other plaint averments and contended that the plaintiff is a B.A., B.Ed., graduate and she is the only daughter to her parents. The plaintiff, defendant and his deceased wife/Savita are distant relatives of the plaintiff and the parents of the plaintiff had full knowledge about the first marriage of the defendant with deceased Savita and he has also admitted that he got the job on compassionate ground, etc. Therefore, he sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues and additional issues:

(i) Whether the plaintiff proves that, the defendant without any just and reasonable cause deserted her and neglected to maintain her?

(ii) Whether the plaintiff proves that, the defendant inspite of sufficient means has not provided any maintenance to her?

(iii) Whether the plaintiff proves that, she is entitled for maintenance at the rate of Rs. 5,000/- per month and for her maintenance amount on the suit property, a charge has to be created?

(iv) What order or decree?

In order to establish plaintiff''s case, plaintiff examined herself as PW-1 and got marked three documents at Exs. P-1 to 3. On the other hand, the defendant examined himself as DW-1 but no documents were marked on his behalf.

After considering the entire material on record, the trial court recorded a finding that the plaintiff proved that the defendant without any just and reasonable cause deserted her and neglected to maintain her and she is entitled to maintenance of Rs. 4,000/- per month. Accordingly, the suit came to be decreed and also charge has been created over the property of the defendant bearing No. 36/1/1A measuring 2 acres 35 guntas and Sy. No. 36/1/1B measuring 2 acres 36 guntas, both situated at Murnal village of Bagalkot Taluka and a plot bearing No. 4 situated in RS No. 102/2 + 3 + 4 of Veerapura village, Bagalkot Taluk, to an extent of share of the defendant for maintenance claim of the plaintiff.

Against the said judgment and decree of the trial court, the defendant filed R.A. No. 9/2011 before the Prl. Senior Civil Judge, Bagalkot, who after hearing both the parties, by his impugned judgment and decree partly allowed the appeal, modifying the judgment and decree of the trial court and granted maintenance amount at the rate of Rs. 3,500/- p.m. to the plaintiff and the judgment and decree of the trial court regarding charge created over the defendant''s property has been rejected. Against the said judgment and decree of the lower appellate court, the present appeal is filed by the plaintiff/wife.

I have heard the learned counsel for the parties to the lis.

Sri. P.N. Hosamane, learned counsel for the appellant, has contended that the lower appellate court has modified the judgment and decree of the trial court and granted maintenance of Rs. 3,500/- p.m., which is very inadequate and the lower appellate court failed to consider that the defendant has got salary of Rs. 15,487/- p.m. and that in view of raise in the prices of essential commodities and cost of living, eking out the day-to-day livelihood is very difficult and therefore, reduction of the maintenance amount by the lower appellate court is without any basis. The lower appellate court rejecting the claim in respect of creating charge over defendant''s property is also contrary to the law and is perverse. Therefore, he sought to set side the impugned judgment and decree of the lower appellate court.

Per contra, Sri. Naveen Melinamani, learned counsel for the respondent, sought to justify the impugned judgment and decree of the lower appellate court and contended that the defendant is getting salary of only Rs. 11,448/- per month, out of which, he has to take care of his old-aged mother. Therefore, the lower appellate court is justified in reducing Rs. 500/- from the maintenance of Rs. 4,000/- granted by the trial court, thereby granting only Rs. 3,500/- p.m. to the plaintiff. Therefore, he sought for dismissal of the second appeal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

This Court while admitting the appeal has framed the following substantial question of law:-

"Whether the lower appellate court is justified in modifying the judgment and decree of the trial court granting maintenance of Rs. 3,500/- p.m. and rejecting the charge created in respect of the agricultural lands to an extent of defendant''s share?"

My answer is in the negative, for the following reasons:

The marriage between the plaintiff and defendant is not in dispute and it is also not in dispute that the defendant is working as FDA in Bagalkot Town Development Authority (BTDA), Bagalkot, and getting salary of Rs. 15,487/- per month. The plaintiff examined herself as PW-1 and denied the suggestion that, before her marriage with the defendant, her family members were intending to marry her with her cousin. She denied the suggestion that after the death of her cousin, her parents have solemnized the marriage with the defendant and PW-1 admitted the suggestion that, defendant is having a mother and both of them are residing together. Admittedly, the defendant has not made any serious allegation against the plaintiff about her character or conduct, though, he has stated that the plaintiff has not adjusted herself along with him and his mother. Defendant has not taken any defence that the parents of the plaintiff have made a condition that their daughter should reside with them even after the marriage with the defendant. DW-1 has admitted that the plaintiff is his second wife. He married her after the death of his first wife--Savita. DW-1 did not choose to deny the suggestion that after the marriage with the plaintiff, he has not informed about his earlier marriage with one Savita and not informed even about the death of Savita. He has stated that the parents of the plaintiff are his distant relatives. As such, by believing that the parents of the plaintiff might know the fact, he has not informed the said fact to the parents of the plaintiff. The trial court also recorded a finding that the defendant after marriage has not looked after the plaintiff properly, as he has deserted her without any just and proper grounds and has neglected to maintain her. The defendant has admitted the fact that he is working as FDA in BTDA office and is getting salary from his service and he has not denied the documentary evidence Exs. P-2 to 5, RTC extracts of the agricultural lands. DW-1 also admitted the fact that the plaintiff is residing in her parents'' house from the year 2008 and he has not provided any maintenance to her inspite of having sufficient income. He has not denied that Exs. P-3 to 5 documents clearly indicate that the defendant is also having irrigated lands, from it, he is getting sufficient income.

Having considered the salary of the defendant and agricultural income from the irrigated lands, the trial court granted Rs. 4,000/- per month as maintenance to the plaintiff and also created charge in respect of the share of the defendant in the agricultural lands, as per Exs. P-3 to 5.

The lower appellate court while reconsidering the entire evidence on record, has come to the conclusion that the take-home salary of the defendant is only Rs. 11,448/- and if Rs. 4,000/- is paid to the plaintiff, there remains only Rs. 7,448/- per month, in which the defendant has to lead his life and also come to the conclusion that granting of Rs. 4,000/- to the wife is illegal and according to the opinion of the lower appellate court, Rs. 3,500/- per month is feasible and reasonable.

The lower appellate court while reducing the maintenance amount has not assigned any reason as to how the appellant was not liable to pay Rs. 4,000/- as granted by the trial court. The opinion expressed by the lower appellate court without adverting to the salary certificate produced before the lower appellate court, which clearly depicts that the defendant was getting Rs. 15,487/- and apart from the salary, defendant is also getting income from the agricultural lands as per Exs. P-3 to 5 and the said fact has not been denied; owning of irrigated agricultural lands has not been denied by the defendant. The lower appellate court has failed to notice that it is the duty of the husband to maintain the wife and in view of the raise in the price of all the essential commodities, granting of Rs. 3,500/- per month to the plaintiff would be inadequate. She cannot lead normal life in Rs. 3,500/- due to the raise in cost of living, etc.

The Hon''ble Supreme Court considering the provisions of Section 125 of Code of Criminal Procedure in the case of Bhuwan Mohan Singh Vs. Meena, AIR 2014 SC 2875 : (2014) AIRSCW 4201 : (2014) 8 JT 359 : (2014) 8 SCALE 573 , has held at para-3 as under:-

"3. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an un-person to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."

In view of the fact that the marriage is admitted, the defendant is working as FDA in BTDA and drawing salary of Rs. 15,487/- and apart from his salary, he is getting agricultural income from the irrigated lands as per Exs. P-3 to 5 measuring to an extent of 2 acres 35 guntas in Sy. No. 36/1/1A and 2 acres 36 guntas in Sy. No. 36/1/1B, both situated at Murnal village, Bagalkot taluk and also the defendant has got a flat in Bagalkot Taluk. Therefore, the lower appellate court while reversing the judgment and decree of the trial court has not assigned any cogent reasons and the reduction of maintenance by Rs. 500/- is without any basis.

Taking into consideration the entire material on record, the oral and documentary evidence, this Court is of the considered opinion that the judgment and decree of the lower appellate court modifying the judgment and decree of the trial court cannot be sustained in law. Accordingly, the judgment and decree of the lower appellate court is set aside restoring the judgment and decree of the trial court.

Accordingly, the regular second appeal is allowed in part. The judgment and decree of the lower appellate court is set aside.

The judgment and decree of the trial court is restored, granting maintenance of Rs. 4,000/- per month to the plaintiff from the date of the order passed by the trial court and also the charge created over the property of the defendant bearing No. 36/1/1A measuring 2 acres 35 guntas and Sy. No. 36/1/1B measuring 2 acres 36 guntas, both situated at Murnal village of Bagalkot Taluka and a plot bearing No. 4 situated in RS No. 102/2 + 3 + 4 of Veerapura village, Bagalkot Taluk, to an extent of share of the defendant for maintenance claim of the plaintiff.