IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 AS.No. 736 of 1997(E) --------------------- OS.227/1995 of PRL.S.C.,THALASSERY .................... APPELLANT(S): -------------- P. RAVINDRAN, SON OF PAITHAL, MARAKALAKATH HOUSE, P.O. CHALIL, THALASSERY TALUK, KANNUR DIST. BY ADV. SMT.VIDHYA. A.C RESPONDENT(S): --------------- 1. M.P. SUJATHA, D/O. BHARATHAN, MANJAPARAMBATH HOUSE, P.O. NEW MAHE, THALASSERY TALUK, KANNUR DIST 2. RAHUL, AGED 9 YEARS (MINOR) S/O. RAVEENDRAN, -DO- -DO- 3. ROHITHA, AGED 7 YEARS (MINOR) D/O. RAVEENDRAN, -DO- -DO- (MINOR RESPONDENTS REPRESENTED THROUGH THEIR GUARDIAN AND MOTHER 1ST RESPONDENT) ADV. SRI.R.SURENDRAN SRI.R.SURENDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON 23/07/2009 DELIVERED THE FOLLOWING: AS.No. 736 of 1997(E) ORDER ON C.M.P. NO: 5323 OF 1997 ON A.S. NO: 736 OF 1997 DISMISSED. SD/- (M.L.JOSEPH FRANCIS) JUDGE M. L. JOSEPH FRANCIS, J. `````````````````````````````````````````````` A.S. NO: 736 OF 1997 ```````````````````````````````````````````````` Dated this the 23rd Day of July , 2009. JUDGMENT This appeal is filed by the defendant in O.S.No: 227 of 1995 on the file of Sub Court, Thalassery. The respondents herein are the plaintiffs in the suit which was filed for past maintenance. The case for the plaintiffs is briefly as follows: 2. The plaintiffs and defendant are Hindus by religion. The defendant married the first plaintiff on 7.6.1987 at Sri Jaganath Temple, Thalassery as per the religious rites and custom. After the marriage the first plaintiff was taken to the house of the defendant and they were living together as husband and wife in his house. In that wedlock, the minor second plaintiff and the minor third plaintiff were born. For the delivery of the second child, the first plaintiff went to her parents house and second child was born on 28.9.89 and, thereafter the defendant stopped visiting her and A. S. NO: 736 OF 1997 :2: that the defendant is not maintaining the plaintiffs. The defendant is having flourishing business at Thalassery, but the same was disposed off by the defendant and he shifted to Badagara where he is running a computer center. The plaintiffs claim Rs.1,000/- per month for the maintenance of the plaintiffs for the past three years. Accordingly, the plaintiffs claim Rs.36,000/- as past maintenance for the three years together with interest. 3. The defendants filed written statement contending as follows: The first plaintiff was taken to the house of her mother on the pretext that during the public examination of her younger sister, there was nobody to help her mother and thereafter, the first plaintiff did not come back to the house of the defendant. In spite of the best efforts of the defendant, the first plaintiff without any reason refused to come and stay with him. The defendant was always willing and ready to take back the first plaintiff and to maintain as his wife and also his children. The defendant also A. S. NO: 736 OF 1997 :3: approached the Family Counselling Centre and made earnest efforts. At reconciliation, the first plaintiff refused to go with the defendant without any justifiable reason. The first plaintiff is therefore not entitled to get any maintenances from the defendant. It is not true to say that he is not giving anything for the maintenance of the children and wife, prior to three years of filing of the suit. The defendant was maintaining them to his capacity. Defendant denied that he was having any business. The business at Thalasserry ended in fact in failure. The defendant is now employed in a computer centre at Badagara, as a clerk on a monthly salary of Rs.1,000/- per month. 4. In the Sub Court PW1, DW1 and DW2 were examined and Exts. A1 to A5 and Exts.B1 to B5 were marked. Learned Sub Judge on considering the evidence, decreed suit in part allowing the plaintiffs to realise an amount of Rs.28,800/- towards past maintenance for three years, at the rate of Rs.800/- per month A. S. NO: 736 OF 1997 :4: together with interest at the rate of 6% per month from the date of suit till the date of realisation and cost of the suit from the defendant. Against that judgment and decree, the defendant filed this appeal. 5. Heard the learned counsel for the appellant and learned counsel for the respondents. 6. Learned counsel for the appellant submitted that the decision of the Sub Court in O.P. 51 of 1995 is binding on the parties and that learned Sub Judge ought to have found that there is no justification for the first plaintiff's separate residence and therefore the first plaintiff is not entitled to get any maintenance. Ext. B1 is copy of the order in O.P. No.51 of 1995 on the file of Sub Court, Thalassery dated 21.12.96. That was a petition filed by the petitioner husband against respondent wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The petitioner in that O.P. is the defendant in the present suit and the A. S. NO: 736 OF 1997 :5: first plaintiff in the present suit is respondent in that O.P. In that O.P. on taking evidence, the sub Court found that there was no reasonable excuse for the respondent wife to withdraw from the society of the petitioner husband and that petition was allowed. An order was passed directing the respondent wife to render restitution of conjugal rights to the petitioner husband. The respondent wife has not filed any appeal against that order. Therefore that finding and order became final. 7. In the decision reported in 1993 AIR scw 2548 (Smt. Chand Dhawan Vs. Jawaharlal Dhawan), it was held that permanent alimony or maintenance Claim by wife is not valid without marital status being affected or disrupted by matrimonial Court and claim to maintenance in such case has to be agitated under Hindu Adoptions and Maintenance Act. The learned counsel for the appellant submitted that the marriage between the first plaintiff and defendant is dissolved by a decree of divorce A. S. NO: 736 OF 1997 :6: passed by the Sub Court, Thalassery as per order in O.P. No. 86 of 2000 dated 11.6.2002. The defendant contends that he is not having sufficient income to pay maintenance to the plaintiffs, as he is getting only Rs.1,000/- per month as a clerk in a Computer Center at Badagara. But there is no document to show that the defendant is getting only Rs.1,000/- per month as income. 8. In the decision reported in AIR 1987 Madras 224 ( Bhagavathi Ammal and Others. V. Sethu) it was held: “Ordinarily, when a wife lives away from her husband for no justifiable reason and without his consent and against his wish, the wife will not be entitled to claim maintenance. S. 18(2) merely lays down that the wife does not forfeit her claim to be separately maintained if she has any of the grounds for separate living mentioned in Sub-Sec.(2). Sub-Sec. (2) of S. 18 does not say that if the wife lives separately from her husband and cannot urge any of the grounds mentioned in this clause she does or does not forfeit her claim to separate maintenance. S.18(3) which provides for her not being entitled to maintenance mentions only two grounds, namely, unchastity and her conversion to another religion. For a case which does not fall under any of the specific ground in S.18(2) or S.18(3), A. S. NO: 736 OF 1997 :7: the answer is to be found tin the discretion of the Court to award suitable maintenance dependent upon the circumstances of the particular case.” 9. In the present case, the defendant husband has no case that the first plaintiff is unchaste or ceased to be a Hindu. Since the learned Sub Judge exercised his discretion properly in awarding past maintenance to plaintiff 1 to 3 for 3 years at Rs.800/- per month, I find no reason to interfere as the amount awarded is just and reasonable. The result is that this appeal is liable to be dismissed as it is without any merits. Accordingly, this appeal is dismissed. The judgment and decree in O.S/227 of 1995 on the file of Sub Court Thalassery is confirmed. Parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/