IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V. ESWARAIAH & THE HON’BLE SRI JUSTICE B.N.RAO NALLA FAMILY COURT APPEAL NO.96 OF 2006 Between: Sri K.S.V.V.Lakshmi Narasimha Rao, S/o.K.P. Swamy, Hindu, Aged 50 Years, Employee, D.No.29-10-15/1, Lalitha Colony, Visakhapatnam. - - - Appellant/Defendant. AND Smt. K. Suguna, W/o.K.S.V.V.Lakshmi Narasimha Rao, Aged about 46 years, R/o.3-64, Paradesipalem, Visakhapatnam, and 3 others. - - - Respondents/Plaintiffs. The Court made the following: THE HONOURABLE SRI JUSTICE V. ESWARAIAH AND THE HONOURABLE SRI JUSTICE B.N.RAO NALLA FAMILY COURT APPEAL NO.96 OF 2006 JUDGMENT: (Per Hon’ble Sri Justice V. Eswaraiah) This Appeal is directed against the judgment and decree, dated 15-06-2006, passed in O.S.No.79 of 2000 by the Judge, Family Court, Visakhapatnam. The Appellant herein is the defendant and the Respondents herein are the plaintiffs in O.S.No.79 of 2000. 2. For the sake of convenience, the parties herein are referred to as they are arrayed in the lower Court. 3. The plaintiffs filed the said suit against the defendant claiming an amount of Rs.33,291/- towards arrears of maintenance from 01-03-1998 to 20-06-1999, and an amount of Rs.2,000/- per month to each of the plaintiffs towards maintenance from the date of institution of the suit, and also for an amount of Rs.3,00,000/- each to plaintiffs Nos.2 to 4 towards marriage expenses and costs of the suit. The said suit was decreed with costs on 15-06-2006, directing the defendant to pay past maintenance at the rate of Rs.500/- per month to each of the plaintiffs Nos.1 to 4 from 01-03-1998 till the date of filing of the Pauper O.P. i.e., 19-07- 1999, and to pay future maintenance at the rate of Rs.2,000/- per month to the Plaintiffs Nos. 1 and 4 each from the date of filing of Pauper O.P. i.e., 19-07-1999, and also directed to pay Rs.1,000/- per month to the 3rd plaintiff from the date of filing of the Pauper O.P i.e., 19-07-1999, till the date of her marriage and also directed to perform the marriage of plaintiff No.4 with his own expenses as and when she gets a suitable marriage alliance, or else he is directed to pay an amount of Rs.3,00,000/- to the 1st plaintiff towards marriage expenses of the 4th plaintiff, and that the 1st plaintiff is entitled to recover a sum of Rs.1,00,000/- towards marriage expenses of her second daughter i.e., 3rd plaintiff, from the defendant. Aggrieved by the same, the defendant filed this appeal. 4. It is the case of the plaintiffs that the first plaintiff is the legally wedded wife of the defendant and their marriage took place on 22-12-1974 at Visakhapatnam, and out of their wedlock, plaintiffs 2, 3 and 4 were born on 08-09-1976, 31-08-1978 and 12-06- 1982 respectively. It is stated that the defendant developed vices like, gambling, drinking etc., and used to harass 1st plaintiff and due to the said harassment 1st Plaintiff was forced to leave the matrimonial house. The defendant gave a false report to the police alleging that the first plaintiff took 15 tulas of gold on 03-06-1979 and he also issued a frivolous legal notice dated 16-06-1979. Even thereafter, they lived together and 4th plaintiff was born on 12-06-1982. During 1986, the defendant, while working as an Officer in the State Bank of India, Visakhapatnam, he was transferred to Toophran, Medak District, where also he used to harass the first plaintiff physically and mentally and due to the said unbearable harassment, she gave a complaint to the police under Section 498-A IPC against the defendant, his mother and brother and the same was registered as C.C.No.42 of 1990. The defendant filed O.P.No.422 of 1989 against the first plaintiff for divorce and O.P.No.130 of 1999 seeking custody of plaintiffs Nos.2 to 4, who were minors by then. Both the O.P.s were dismissed as the matter was settled out of the Court and thereafter, the first plaintiff did not prosecute the complaint made by her. In pursuance of the compromise, the defendant took the plaintiffs to the newly constructed house, situated at Paradesipalem and used to live with them. While so, the defendant was transferred from Medak District to Chittivalasa and thereafter to Makkuva of Vizianagaram District, wherein they lived together till 01-03-1998, on which date, the defendant necked out the plaintiffs from his house and therefore, they returned to Paradesipalem. The defendant gave a report against the plaintiffs for the offences under Sections 448, 341 and 323 read with 34 IPC. The further case of the plaintiffs is that the defendant has been paying an amount of Rs.1,500/-per month towards maintenance to the plaintiffs from the month of July/August,1997 by way of Demand Drafts though all of them were living together under the same roof during that period, and that the defendant developed illegal intimacy with one Ramadevi and living with her deserting the plaintiffs. Thereafter, the defendant filed O.P.No.422 of 1989 against the first plaintiff for divorce and the same was dismissed. It is the further case of the plaintiffs that plaintiffs Nos.2 to 4 are studying and that the defendant is working in the State Bank of India and earning more than Rs.20,000/- per month. For the marriage expenses of plaintiffs Nos.2 to 4, the first plaintiff claimed an amount of Rs.6,00,000/- from the defendant. Hence, the suit. 5. The defendant filed written statement admitting the relationship with the plaintiffs, lodging a complaint with the police against the first plaintiff for theft of 15 tulas of gold, and issuing a legal notice. He also admitted about filing of O.P.No.211 of 1979 against the first plaintiff for restitution of conjugal rights and the same was decreed, but the first plaintiff has not chosen to join the defendant. It is stated that after a lapse of one year, she joined the defendant at the advice of the elders. The defendant has denied all allegations with regard to cruel nature and evil designs, and filing of O.P.No.150 of 1998 with an intention to continue the illicit intimacy with Ramadevi. He admitted about the payment of maintenance through Demand Drafts, but disputed that they are not living together. It is further stated that he was getting a sum of Rs.4,500/-per month after deductions, such as, housing loan, consumer loan and personal loan for construction of the house etc., but not Rs.25,000/-per month as alleged. It is stated that though he prepared to perform the marriage of his daughter, but could not meet any expenditure of Rs.5,00,000/- as claimed in the plaint. It is stated that the first plaintiff herself forcibly occupied the house, which was constructed by the defendant with his own earnings by raising loans from the Bank and he himself was necked out from the house and therefore, there is no necessity for the plaintiffs to spend the amount towards rent and that the third plaintiff is working as a Computer Operator in V.E.P.Z. at Visakhapatnam and drawing salary of Rs.10,000/- per month and therefore, she is not entitled to claim any maintenance from him. The defendant has admitted that he is paying Rs.2,000/- per month to the first plaintiff voluntarily from April, 1998 to October, 2000 during the pendency of O.P.No.150 of 1998 though she did not claim any maintenance under Section 24 of the Hindu Marriage Act. Further, the first plaintiff owns a house at Akkayyapalem and getting monthly rent of Rs.3,000/-, besides that, she owns two plots admeasuring 500 square yards each at Duvvada village and getting a rent of Rs.3,000/- per month from each plot. Therefore, the first plaintiff is not entitled to claim any maintenance from the defendant. 6. Based on the above said pleadings, the trial Court framed the following issues for trial : 1. Whether the 1st plaintiff voluntarily deserted the defendant without any valid reason and living separately? 2. Whether the 1st plaintiff forcibly occupied the house got constructed by the defendant? 3. Whether the defendant is paying Rs.2,000/-per month to the 1st plaintiff since April, 1998 to October, 2000 pending OP No.150 of 1998? 4. Whether the 1st plaintiff has got monthly income of Rs.2,000/- and is capable of maintaining herself and plaintiffs 3 and 4? 5. Whether the plaintiffs are entitled to claim maintenance at Rs.2,500/-per month from the defendant towards future maintenance? 6. Whether the plaintiffs are entitled to claim past maintenance of Rs.33,291/- as claimed? 7. Whether the defendant has got sufficient means to pay maintenance to the plaintiffs as claimed in the suit? 8. To what relief? 7. During trial, the first plaintiff examined herself as PW.1 and also examined P.W.2 and got marked Exs.A1 and A2. The defendant examined himself as DW.1 and got marked Exs.B1 to B5. The suit was decreed, as stated supra, and therefore, the relevant evidence leading to grant the above relief is alone necessary, as the other reliefs and contentions were negatived by the trial Court. 8. Heard the learned counsel for the Appellant/Defendant and the learned counsel for the Respondents/Plaintiffs. The first plaintiff examined herself as P.W.1. She reiterated the averments mentioned in the plaint and denied all the allegations made in the written statement. She stated that she has no source of income and has no properties. She stated that she performed the marriage of her eldest daughter during the pendency of the suit. She stated that for the said marriage, she borrowed a sum of Rs.50,000/- from her brother-in-law who advanced the same from out of his voluntary retirement benefits, her younger sister Vasundara advanced a sum of Rs.50,000/- and her friend by name, Sri Lakshmi, advanced a sum of Rs.50,000/-. She also took hand loans from others. She further stated that she also obtained loan of Rs.1,00,000/- from Margadarsi Chit Fund Company and that her mother helped her by giving an amount of Rs.1,000/- every month from out of her pension towards the school fees of her children and her brothers also helped her in educating the children. She further stated that though the marriage of third plaintiff was settled, due to lack of money, she could not perform the same. She prayed for grant of maintenance @ Rs.2,500/- per month to her, Rs.2,500/- each to plaintiffs Nos. 2 to 4 and Rs.3,00,000/- each to plaintiffs Nos. 2 to 4 towards their marriage expenses. . PW.1 stated that she is not getting any income on any account and she did not discharge the debts borrowed by her. She performed the marriages of her elder daughter and they are independently living by maintaining a school, third daughter is studying B. Tech., final year and she is paying Rs.30,000/- per year towards her college fees and Rs.2,000/- every month for her hostel fees, out of which, her mother is giving Rs.1,000/- from her pension amount. She stated that her sisters and her friends are also helping in providing education to her third daughter. She stated that she is staying with her mother and her mother alone is looking after her. She stated that she has not deserted her husband and harassed him. The defendant used to send the maintenance amount @ Rs.1,500/- p.m. by way of demand draft by post. She stated that the defendant has paid the school fees of Swapna and she is not getting any income. 9 PW.2 is elder sister of the first plaintiff, she stated that she advanced Rs.50,000/- to PW.1 towards dowry and Rs.50,000/- towards the marriage expenses at the time of marriage of the elder daughter of the first plaintiff and the first plaintiff did not repay the same. She stated that she is working as teaching associate and her husband is working as professor in Andhra University and she has also advanced cash of Rs.50,000/- to PW.1 at the time of performing the marriage of her second daughter. She stated that herself, her sisters and her mother are helping PW.1 by giving some amount every month. She stated that PW.1 has no independent source of income. 10. Defendant himself examined as DW.1 and got marked Exs.B1 to B5 on his behalf. He stated that his first daughter was born in 1976 and the disputes arose among himself and the first plaintiff from 1979 and he gave a complaint against the parents of his wife and also filed O.P. for restitution of conjugal rights which was allowed in 1980 but, she did not join him and the Appeal preferred by her was also dismissed. He stated that on the intervention of elders his wife joined him and stayed in the house at Dabagardens, Visakhapatnam and he did not pay any amount towards maintenance to her from 1979 to 1981. The fourth plaintiff was born on 12-06-1982, thereafter she did not join him. He worked from 1982 to 1986 at Visakhapatnam and plaintiffs were not with him at that time and he did not pay any amount towards their maintenance. While so, in 1986 he was transferred to Toophran of Medak District and worked there up to 1989 i.e., for a period of three and half years. Plaintiffs were also not with him at that time and he has not paid any amounts towards their maintenance during that period. He did not took his family when he was transferred to Makkuva of Vizianagaram and on the other hand, he got issued a legal notice to first plaintiff on 17-11-1988 stating that she herself left the house at Medak. In 1989 he returned back to Visakhapatnam on his transfer from Medak and filed O.P. seeking divorce. He denied the suggestion that neither he nor his family members harassed the first plaintiff. He stated that the house at Paradesipalem was constructed by him only by obtaining loans and his wife has not invested any amount and she has no right, title or interest over the said property. He has also admitted that earlier he filed divorce O.P. which was dismissed as not pressed and the complaint filed under Section 498-A IPC against him was ended in acquittal. It was suggested on behalf of the first plaintiff that a criminal case was ended in acquittal because of her hostile attitude as he has withdrawn the divorce O.P. In 1997, he was transferred to Makkuva of Vizianagaram District and he did not took his family and again he was transferred from Makkuva to Sriharipuram, Visakhapatnam District. It is stated that he never instigated the said Rama Devi to file a Criminal case against the complainant. It is admitted by him that he being the father, has to perform the marriages of his children. He did not attend the marriage of his elder daughter and he did not spend any amount though he was invited by his wife PW.1, while he was working at State Bank of India, Anakapalle branch, and he did not attend the marriage of his second daughter also. He did not also bear any marriage expenses of his second daughter. It is admitted by him that his third daughter is studying B.Tech., and he is not paying any amount separately towards the education of his third daughter, except maintenance amount to his wife. It was suggested that he himself neglected the plaintiffs and refused to maintain them though he is having sufficient means and he denied the said suggestion. It is stated that he has not filed any documentary evidence in proof of his contention to show that his wife and his third daughter are getting amounts by running “Mahalakshmi girls hostel”. 11. In view of the aforesaid evidence available on record, the only point that arise for consideration : Whether the first plaintiff has deserted the defendant (husband) disentitling her to claim maintenance? Insofar as the maintenance and marriage expenses of the children i.e. plaintiffs Nos. 2 to 4 are concerned, the defendant himself admitted that he being the father and natural guardian, he is under legal obligation to bear their expenses. Therefore, it cannot be said that the decree passed by the Court below towards the marriage expenses and maintenance amounts to his first daughter till the date of her marriage is illegal. He being the father, the defendant has the responsibility to bear the marriage expenses and also to maintain them till the date of their marriages. Insofar as the maintenance amount payable to the first plaintiff is concerned, the evidence available on record goes to show that he himself neglected the plaintiffs and he never took them along with him as and when he was transferred to various places. The allegation made by the first plaintiff that the said Rama Devi is his concubine and with a view to live with her, he wanted to get rid of the plaintiffs is not established. But the evidence available on record establishes that the defendant (husband) himself deserted the first plaintiff and neglected his children i.e. plaintiffs Nos. 2 to 4 and therefore, we are of the opinion that the trial Court rightly decreed the suit for the aforesaid reliefs. 12. We are also of the opinion that the plaintiffs are able to prove the guilt of the desertion on the part of the defendant and they are also able to discharge the burden entitling themselves in seeking maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. Even, according to the evidence of PW.1, it is established that the defendant himself has wantonly deserted the plaintiffs i.e. his wife and his children. Merely because the first plaintiff filed a Criminal case in C.C. No.42 of 1990 under Section 498-A IPC which was ended in acquittal, it cannot be said that the first plaintiff is guilty of cruelty. It is stated that for the criminal action on the part of the defendant and his family members, she filed the said criminal case. In fact the defendant and his family members were acquitted as the O.P. filed by the defendant seeking divorce was withdrawn by him, and therefore, because of her hostile attitude only the Criminal case was ended in acquittal. As long as the plaintiffs are being the wife and children of the defendant, they have every right to occupy and live in the house of the defendant at Paradesipalem, which was got constructed by the defendant by obtaining different loans. We are also of the opinion that the Court below did not commit any error in awarding past and future maintenance to the Plaintiffs, and in addition to that awarding Rs.1,00,000/- to the third plaintiff towards marriage expenses and also Rs.3,00,000/- towards marriage expenses to the 4th plaintiff. In view of the aforesaid discussions, We do not see any ground to interfere with the judgment and decree of the Court below passed in O.S. No.79 of 2000, and accordingly, the Appeal is dismissed. No order as to costs. _________________ V. ESWARAIAH, J _________________ B.N.RAO NALLA, J Date: 10-03-2010. SJ/DSH.