IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.189 of 2002. Judgment Reserved on:2.5.2008 Date of decision: 05.06.2008. Shri Prem Chand ….Appellant Versus Smt.Premi Devi ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Ramakant Sharma, Advocate. For the Respondent: Mr.Sunil Awasthi, Advocate. Dev Darshan Sud,J. This is the defendant’s appeal against the judgment and decree of the learned Additional District Judge, Solan, decreeing the suit of the plaintiff granting maintenance at the rate of Rs.1000/- per month to the plaintiff, respondent herein. The respondent approached the trial Court as an indigent person on the allegation that she is the legally wedded wife of the defendant, appellant herein and the marriage between the parties having been solemnized about 35 to 36 years prior to the institution of the suit. Out of this wedlock the 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 parties have four children; one daughter and one son are married while other two sons are still unmarried. She pleaded that the appellant herein settled in Tehsil Nalagarh, where he is carrying on his avocation of agriculture as also the employment in Irrigation and Public Health Department, where, he was, at the relevant point of time, earning Rs.4000/- per month. She contended that she has been neglected and the defendant was keeping a mistress in his house. On 21.4.1996 one document was got signed from her, she was beaten up and turned out of the house. She pleads that in these circumstances, and in her condition of indigency, she has nothing to fall back upon and that she may be awarded maintenance in terms of the Hindu Adoptions and Maintenance Act, 1956, (hereinafter referred to as the `Act’). The marriage is not disputed, but the allegation is that there is no existing relationship of husband and wife as the respondent is the wife of one Karorimal son of Lakha Mal, House No.143, Mohalla Islam Ganj, Jalandhar City, Punjab, where she has been staying as such for the last more than 30 years and where she has given birth to sons Partap Chand, Parkash Chand and Parshotam Lal and daughter Taruna. The learned trial Court dismissed the suit holding that the plaintiff-respondent was living of her own with Karorimal. He also holds that there is nothing on record to prove that the marriage between the 3 plaintiff and the defendant has come to an end, but the conduct of the parties especially the wife is of such a nature that no blame can be laid on the appellant. In appeal, the judgment of the learned trial Court has been set aside. This appeal was admitted by this Court on there questions of law formulated on 16.5.2002 :- “1. Whether the impugned judgment and decree of the learned first Appellate Court is against the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956. If so, its effect? 2. Whether the impugned judgment and decree of the learned first appellate Court is the result of misreading of evidence on record and based on conjectures and dehors the evidence? 3. Whether the findings of the learned first Appellate Court that there was a legal and valid marriage between the parties is dehors the evidence on record?” I have heard learned counsel appearing for the parties and have gone through the record. The third question which arises for determination of this Court is as to whether the first appellate Court was correct in holding that a valid marriage subsists between the parties. 4 The evidence on the record does not show that the relationship of husband and wife between the parties was terminated. Infact, the pleadings show that allegations of adultery have been levelled against the appellant as also sexual misconduct against the husband on the ground that he is living with another woman. It must be noted that both the parties to the suit had admitted their relationship as husband and wife. The learned Courts below are correct in holding that there is nothing on the record to show that the relationship of husband and wife between the appellant and the respondent has been put to an end. On the first question, as to whether the judgment of the appellate Court is against the provisions of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, (hereinafter referred to as the `Act’), which reads: “18. Maintenance of wife.-(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,- (a) if he is guilty of desertion, that is to say, of abandoning 5 her without reasonable cause and without her consent or against her wish, or of willfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion”. learned counsel appearing for the appellant submits that the respondent is living apart from her husband without any reasonable cause. The appellant has not deserted her and in-fact she has deserted the company of the appellant-husband without any reasonable excuse. It is submitted that the evidence on record 6 establishes that she is living an unchaste life residing with Shri Karorimal and having accepted the children born from this association with him, no relief can be granted to her as provided for by Section 18 of the Act. While determining this issue, it must be kept in mind that it also impinges upon the legitimacy of the children born to the respondent who are alleged to be illegitimate as no valid marriage has been established with said Shri Karorimal. The learned appellate Court, while determining the relationship inter-se between the parties, has referred in detail to the evidence on record. PW-1 Smt.Kanta, who is a B.D.C Member in Nalagarh, has stated unequivocally that the parties to this appeal were residing as husband and wife for more than 25 years. To similar effect is the evidence of PW-2 Smt.Madi Devi. PW-3 Shri Amar Chand has proved on record Ex.PW-3/A, which is a voters list for the year 1995 showing Premi Devi wife of Prem Chand, Pratap Chand, Poonam, Prakash Chand and Jyoti sons and daughters of Prem Chand. Ex.PW-5/A has been issued by Jagdish Raj Raja, who is Councilor in the Municipal Corporation, Jalandhar again showing Premi Devi and her sons and daughters being wife, sons and daughters of Prem Chand. These witnesses have proved the original record. The plaintiff appeared as PW-7 and stated that she was forced to leave her husband’s home and harth because of maltreatment and could not allow 7 her children to starve. Learned counsel appearing for the respondent has laid emphasis on Ex.DW-2/A and Ex.DW-3/B which are the voters lists which show that Premi is the wife of Karorimal and Pradeep is his son. Appellant appeared as DW-1 and reiterated his allegations made in the written statement. On a consideration of the entirety of the evidence on the record, the learned appellate Court concluded that there is nothing on the record to establish the contention of the appellant that the respondent had remarried with Karorimal as there was no evidence on the record to show this. There is no perversity in these findings. Merely because in some voters list some entry is made that necessarily would not change the marital status of the parties. Defendant has to show as to whether the marriage was actually dissolved since it was admitted that the parties to the appeal are married. There is no rebuttal to the evidence of the PW-1 and PW-2 who have stated unequivocally that the parties to this appeal were living together for more than 25 years. There is again nothing on the record to show that the respondent has withdrawn from the company of the appellant without reasonable excuse to attract the bar of Section 18(2) of the Act. On the question of application of subsection (3) of Section 18, all that need to said is that the allegations of un-chastity are easy to level but difficult to prove. However, there is no evidence on record to show that 8 the respondent was in-fact living with Kariromal as his wife and leading an unchaste life. No inference can be drawn from a stray entry in a voters list. Any conclusion to the contrary would be against law as it would put an end to the legitimacy of the paternity of the children and the validity of the marriage. Surely, the appellant could not push the respondent out of the house and then claim un-chastity when she goes out in search of living in earning her livelihood along with four children. This contention of the counsel for the appellant cannot be accepted. On the first question it is held that the appellate Court was right in granting maintenance and has correctly appreciated the provisions of Section 18 of the Act. Under the Hindu Marriage Act, there is a presumption of legitimacy of marriage. (See: Smt.Nirmala and others vs. Smt.Rukminibai and others, AIR 1994 Karnataka 247). Of-course, a presumption can be raised regarding relationship of a marriage between a man and woman if they have been living together. (See: S.P.S. Balasubramanyam vs. Suruttayan alias Andali Padayachi and others, AIR 1992 SC 756). In the present case, no evidence has been led on the record to show that the marriage tie between the appellant and the respondent had been dissolved at any point of time or that there has been a long cohabitation between the respondent and Karorimal. Rather the evidence of the plaintiff-respondent that 9 she had been residing with the appellant for a period of more than 20 to 25 years and that the marriage was never dissolved by resort to any legal means has remained un-rebutted. It is also by now well settled that presumption in favour of legitimacy of the birth of children is the normal rule. The appellant cannot by virtue of the present proceedings be allowed to challenge the legitimacy of the children. On second question I hold that there is no misreading of the evidence on the record. This appeal is accordingly dismissed. There shall be no order as to costs. June 5, 2008. (Dev Darshan Sud) (aks) Judge.