IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 02.07.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.1148 of 1994 AND C.M.P. No.14252 of 1995 T.G.Gopalakrishnan .. Appellant/Defendant Vs. G.Rajammal alias Mani .. Respondent/Plaintiff The First Appeal is filed against the judgment and decree dated 10.10.1991 made in O.S.No.30 of 1988 on the file of the Court of Subordinate Judge, Poonamallee under Order 41 Rule 1 and Section 94 CPC. For Appellant : Mrs.Hema Sampath, Senior Counsel for Ms.R.Meenal For Respondent : No appearance JUDGMENT Niggard and bereft of details, the quintessence of the case of the plaintiff as stood exposited from the plaint would run thus:- On 29.4.1964, as per the Hindu rites and customs at West of Panayil Asaramam Quilon-2, the plaintiff and the defendant got married. During the wedlock, they gave birth to two daughters and one son. For about 16 years, the couple lived together peacefully. Later, the defendant developed illicit intimacy with the plaintiff's younger sister, Rajalakshmi alias Rahini and the defendant eloped with her on 30.3.1981 and later he married her on 30.3.1981 under the Special Marriage Act in the Office of the Sub-Registrar at Varkala in Kerala State. Gomathi, the mother of the plaintiff filed W.P.3188 of 1981 as against the defendant in the Madras High Court for issuance of Habeas Corpus for securing the presence of the said Rajalakshmi alias Rahini before the Court. However, the defendant managed to make Rajalakshmi alias Rahini to state before the High Court that she out of her own free will started staying with the defendant as she happened to be a major at that time. As such, the defendant has been living with https://hcservices.ecourts.gov.in/hcservices/ Rajalakshmi in adultery. The defendant consequently deserted the plaintiff and neglected to maintain her from 1.4.1981 onwards and that he also ill-treated her. At the time of filing of suit, the defendant was a Gazetted Officer in the State Service of Kerala and his monthly salary was Rs.1,700/-. The defendant also owning immovable properties at Durbar Hall Road, Ernakulam, Kerala State. In addition to it, he owns others properties as detailed hereunder:- 1.Ambadi Tourist Home Rs. P. No.36/136, A1 Parthasarathy Building Ernakulam, Durbar Hall Road, Ernakulam, Cochin-682 016. 8400 00 2.Indira Travels above address 800 00 3.Parackal Sanitary House – do- 1500 00 4.Metro Dresses – do- 1600 00 also ptr 5.Mini Computer Service (P)Ltd., 800 00 6.Arunivas, Palarivattam, Cochin-25 875 00 ------------- Rs.16475 00 ------------- The defendant's monthly income from his properties was Rs.16,475.00 as on the date of filing of suit. The plaintiff is not having sufficient means to maintain herself and hence the suit claiming the past arrears to the tune of Rs.22,500/- and also a sum of Rs.,1,500/- per month from the date of filing of the suit till her life time. She also prayed for creating charge over the immovable properties of the defendant so as to secure the prompt payment of the maintenance by the defendant to the plaintiff. 2. Per contra denying and refuting, gainsaying and controverting the allegations/averments in the plaint, the defendant filed the written statement, the pith and marrow of it would run thus:- Even though the plaintiff is the wife of the defendant none the less, she was not faithful to him as she had extra-marital sexual relationship with her neighbour and other persons in the locality. Owing to the shameful act of the plaintiff, the defendant with his children left for Karnataka. The eldest daughter of the plaintiff and defendant requested the plaintiff's younger sister Rajalakshmi to join them. As such, there is no illicit relationship between the defendant and the said Rajalakshmi. The defendant entered into an agreement with Rajalakshmi at Varkala Registration Office on 30.3.1981, but it was not a marriage under the Special Marriage Act. The plaintiff therefore not entitled to any maintenance. Despite the plaintiff's bad conduct, the defendant was sending a sum of Rs.150/- per month ever since November https://hcservices.ecourts.gov.in/hcservices/ 1980 through M.O. However, the M.O., sent on July, 1981 was returned as payee not available at the address given. After that, the defendant stopped paying the amount through M.O. The plaintiff was a partner in a business enterprise called 'Metro Dresses' at Cochin and after getting substantial share, she left the firm. The plaintiff has got means to maintain herself. The defendant is not having that much financial resources as alleged in the plaint. Accordingly, he prayed for the dismissal of the suit. 3. A reply which was nomenclatured as rejoinder denying the allegations in the written statement was filed by the plaintiff. During trial, the plaintiff examined herself as P.W.1 and exhibited documents Ex.A-1 to Ex.A-16. On the side of the defendant, the defendant examined himself as D.W.1 and exhibited documents Ex.B.1 and Ex.B.2. Ultimately, the trial court awarded monthly maintenance of Rs.1000/- from 1.4.1981 till 30.6.1982 quantifying it in a sum of Rs.15,000 and also awarded at the same rate monthly maintenance from 18.9.1982 onwards. Charge was also created over the immovable properties of the defendant. 4. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the defendant filed this appeal on the following grounds among others:- The judgment and decree of the trial court is against law, weight of evidence and all probabilities of the case. Ignoring the fact that the defendant had paid a sum of Rs.150/- per month from 1.9.1980 to 31.1.1988, totally to the tune of Rs.13,350/-, the trial Court awarded maintenance. Without considering the total income of the defendant and his expenditure, simply the trial court awarded maintenance as stated supra. Accordingly, he prayed for setting aside the judgment and decree of the trial court. 5. The parties are referred to hereunder according to the litigative status before the trial court. The points for consideration are :- (i)Whether the plaintiff is entitled to get maintenance from the defendant? (ii)Whether the quantum of maintenance is on the higher side . (iii)Whether there is any infirmity in the judgment and decree of the trial court? 6. Heard the learned Senior Counsel for the appellant. No one represents the respondent and respondent is also called absent. Points 1 and 2:- These points are taken together for discussion and they are interwoven with each other. https://hcservices.ecourts.gov.in/hcservices/ 7. The learned Senior Counsel would advance her argument to the effect that the plaintiff get herself disentitled to claim any maintenance in view of her adulterous and immoral conduct. The indubitable and unassailable facts are that the marital relationship between the plaintiff and the defendant is still subsisting; the plaintiff and the defendant are living apart from each other; the defendant himself admitted his liability to pay maintenance in one way or the other as per his version in the plaint and according to him he had sent a sum of Rs.150/- per month to the plaintiff towards her maintenance. At this juncture I would like to highlight that the onus probandi is on the husband to prove that the wife has been living in adultery and thereby she got herself disentitled to claim maintenance. Here, except the ipse dixit of the defendant himself as D.W.1, there is no iota or shred of evidence to prove that the plaintiff is living in adultery. Even though the defendant in the plaint referred to some letter alleged to have been written by the plaintiff admitting her immoral conduct, no such letter has produced during trial. If at all the plaintiff had involved in such adulterous acts in the manner set out in the written statement, then, certainly the persons in the locality might be knowing about it. But absolutely, there is no iota or shred of evidence in that regard. In fact, on a perusal of the trial court's judgment, it is explicit that there is no reference to the ground of adultery and no issue has been framed and both parties adduced evidence only in respect of the quantum of maintenance. The fact to be noted is that the defendant himself admitted that he started living with Rajalakshmi, the younger sister of the plaintiff. However, he would try to give colour to it by placing reliance on a Registered agreement based on which they started living. But that agreement was not produced before the Court. Ultimately, the trial Court awarded maintenance. In the grounds of appeal also only regarding the method and manner of assessing the quantum of maintenance is found challenged and accordingly he prayed for setting aside the judgment and decree of the trial court. 8. The plaintiff relied on as many as sixteen documents on her side to highlight that the defendant is having means to pay maintenance as claimed by her. The trial court also in its judgment at para No.11, highlighted that the defendant himself admitted that he had right over those immovable properties referred to in the plaint supra. However, he added that in those buildings, only the ground floor of the two shops belonged to him. He also admitted that he has been receiving Rs.1400/- per month as rental income. It is the contention of the plaintiff that she was a partner in the firm 'Metro Dresses' which is also stated to be in the said building of the defendant referred to in the plaint. However, it is the contention of the plaintiff that she was sent out of that firm after paying her Rs.2,500/-. The defendant has not proved that she still continues as the partner in the firm 'Metro Dresses' and earning income. The defendant would contend that one Chellammal was the owner of the first floor of the building, but, https://hcservices.ecourts.gov.in/hcservices/ there is no clinching proof to that effect. 9. A perusal of the deposition of D.W.1 would reveal that the defendant is a income tax assessee. Placing reliance on Ex.B.2, the income statement, he would develop his plea that during the assessment year 1987-88, his income was Rs.38,570/-. He would also admit that he has been getting the following rental income:- Rs.2,300/- from house property Rs.1,700/- from Parackal Sanitary House Rs.600/- from Metro Travels Shop However, he would plead that he did not get any income from other items of property set out in the plaint. He would submit that for the purpose of maintenance, his children, he has to spend considerable amount. He also admitted that during 1991, he was getting Rs.3,100/- per month as Engineer in Kerala Electricity Board. It is the contention of the defendant that in the immovable properties referred to in the plaint, he is not having exclusive rights, but, his elder sister Chellammal also has got rights. But the said Chellammal was not examined before the Court to prove the relevant facts. At this juncture, I would like to highlight that this is only a simple suit for maintenance by the wife. In view of my findings supra, it is obvious that so long as marital relationship between them subsists, then the husband is bound to maintain the wife. The wife being the plaintiff herein cannot be expected to prove with clinching evidence all the details of the husband's income. The husband in this case is having immovable properties and getting rental income as he admitted part of the averments as found set out in the plaint relating to his income. However, he would come forward with a case as though one Rajammal following her Chellammal also has right over it. In such a case, there should be clinching evidence to prove his plea that he was getting a meagre income only. Ex.B.2 is the income particulars of the defendant for the years 1979 to 1990. The trial Court correctly commented upon it by observing that these documents were prepared by his Auditor. Nevertheless, the Auditor was not examined and the details pertaining to Ex.B.2 were not produced and proved consequently. Ex.B.2 cannot be taken for gospel truth. However, it is the burden of the defendant to prove his actual income in view of his admission that he owns immovable properties. During cross-examination, the defendant would candidly admit that he did not produce any rental deeds between himself and the tenants under him and also the documents indicating the actual interest of such Chellammal and Rajammal. Hence, in these circumstances, the trial Court cannot be found fault with for having arrived at its conclusion. 10. The trite proposition of law governing awarding of maintenance is that the wife is entitled to live in commensurate with the status of her husband. Here, the defendant's own admission and the documents https://hcservices.ecourts.gov.in/hcservices/ filed by the plaintiff would clearly prove that the plaintiff being the wife of the defendant and the defendant being an Engineer and propertied man, she is entitled to live with reasonable comforts. The suit itself is filed in the year 1982. Awarding of maintenance ranges from 1981. During that time, for a lady to lead a moderately comfortable life and to keep the pot boiling after keeping the wolf from the door, she would atleast in need of a sum of Rs.1000/- per month and in fact on a average it comes to Rs.35/- per day. To meet creature comforts, a lady would necessarily require not less than Rs.1000/- per month. Accordingly, both the points 1 and 2 are decided in favour of the plaintiff. In the result, I am of the considered opinion that the judgment passed by the trial court does not warrant any interference. Accordingly, the judgment and decree of the trial court is confirmed and the appeal is dismissed. There shall be no order as to costs. Consequently, connected C.M.P. is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri To 1.The Subordinate Court, Poonamallee 2.The Record Keeper, VR Section, High Court, Madras. +1cc to Ms.R.Meenal, Advocate Sr 34289 RA (CO) km/12.7. A.S.NO.1148 of 1994 https://hcservices.ecourts.gov.in/hcservices/