IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28-06-2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.803 of 2007 and M.P.No.1 of 2007 V.Ramamurthy .. Appellant/Defendant vs. Neelaveni .. Respondent/Plaintiff PRAYER: Appeal against the judgment and decree, dated 3.2.2007, made in A.S.No.21 of 2006, on the file of the Subordinate Court, Panruti, confirming the judgment and decree, dated 23.6.2006, made in O.S.No.689 of 2004, on the file of the District Munsif Court, Panruti. For Appellant : Ms.R.Meenal For Respondent : Mr.R.Gururaj J U D G E M E N T The second appeal has been filed against the judgment and decree, dated 3.2.2007, made in A.S.No.21 of 2006, on the file of the Subordinate Court, Panruti, confirming the judgment and decree, dated 23.6.2006, made in O.S.No.689 of 2004, on the file of the District Munsif Court, Panruti. 2. The appellant in the present second appeal was the defendant in the suit, in O.S.No.689 of 2004. The respondent, who was the plaintiff in the said suit, had prayed for a judgment and decree to direct the defendant, who is her husband, to pay a sum of Rs.36,000/-, as past maintenance and to further direct him to pay a sum of Rs.18,000/- per year, as future maintenance, from the date of the suit. 3. The plaintiff had further stated that the marriage had taken place between the plaintiff and the defendant, on 2.5.1971, as per Hindu Rites and Customs. Both the plaintiff and the defendant were living together till the year, 1985. Four daughters and two sons were born out of the wedlock. Thereafter, certain disputes had arisen between the plaintiff and the defendant, as the defendant was having immoral character and as he had started living with one Neelavathi. https://hcservices.ecourts.gov.in/hcservices/ The plaintiff, with great difficulty, had managed to eke out her living and to take care of herself and her children. Since, it became increasingly difficult to make ends meet and to take care of herself and her children, the plaintiff had filed a suit for her maintenance. It had also been stated that the defendant husband was an attender in a Cooperative Bank in Ulundurpet and he was receiving a substantial amount as salary. In such circumstances, the plaintiff had filed the suit, in O.S.No.689 of 2004, on the file of the District Munsif Court, Panruti. 4. In the written statement filed on behalf of the defendant- husband, it had been admitted that the marriage between the plaintiff and the defendant had taken place, on 2.5.1971. However, it had been stated that he was not treating the plaintiff, cruelly, as alleged by her. The allegation that the defendant was immoral in character had no basis. It was only the plaintiff, who was working as a waiter in Modern Rice Mill, Ulundurpet, was having an illicit relationship with one Krishnamoorthy, who was also an employee in the said mill. The plaintiff was living in Bangalore, having deserted the defendant. Only thereafter, certain disputes had arisen. 5. The trial Court had framed the following issues for consideration: 1. Whether the plaintiff is eligible to get the maintenance from the defendant? 2. Whether the plaintiff is entitled to get the maintenance amount from the defendant, as prayed for by her? 3. What other reliefs, the plaintiff is entitled to? 6. While giving its findings, with regard to the issues arising for its consideration, the trial Court had found that the statement of the Panchayatdhar, who was examined as D.W.2, in favour of the defendant, had stated that the plaintiff had no intention to live with her husband. However, the trial Court had come to the conclusion that no divorce had taken place between the plaintiff and the defendant in accordance with law. The defendant was bound to maintain the plaintiff, as she was his legally wedded wife. Even though the defendant had filed Exhibit B.1 to show that his take home salary was only Rs.133/-, the trial Court had decreed the suit in its entirety, as prayed for by the plaintiff relying, on Exhibit B.1, which had shown that the salary of the defendant was Rs.13,533/, by its judgment and decree, dated 23.6.2006, made in O.S.No.689 of 2004. 7. Aggrieved by the said judgment and decree of the trial Court, dated 23.6.2006, the defendant had filed an appeal before the Subordinate Court, Panruti, in A.S.No.21 of 2006. It had confirmed the judgment and decree of the trial Court, by its judgment and https://hcservices.ecourts.gov.in/hcservices/ decree, dated 3.2.2007, made in A.S.No.21 of 2006. 8. Both the Courts below had concurrently found that the allegation of illicit intimacy against the plaintiff had not been proved by the defendant. Therefore, the plaintiff would not be disqualified to get maintenance, in view of Section 18(3) of the Hindu Adoptions and Maintenance Act, 1956. Both the Courts below had found, based on the claims made by the plaintiff, that the plaintiff- wife is entitled to maintenance from her defendant husband. 9. The defendant in the suit had filed the present second appeal before this Court challenging the concurrent findings of the Courts below raising the following questions, as substantial questions of law. "1) Whether in law the Courts below are right in awarding maintenance to an erring wife when Section 18(3) of the Hindu Adoptions and Maintenance Act, disentitles an unchaste woman to seek maintenance? 2) Whether in law the Courts below are not wrong in coming to perverse finding of facts without a proper appreciation of the evidence?" 10. The learned counsel appearing on behalf of the appellant had submitted that the Courts below had erred in passing a decree for maintenance, as prayed for by the plaintiff, in the suit, who is the respondent in the present second appeal. The Courts below had failed to note that the respondent had deserted the appellant 18 years prior to the filing of the suit for her own reasons and not due to any fault on the part of the appellant. The Courts below ought to have seen that during the 18 years after the marriage, the respondent was leading a wayward life and therefore, she had not claimed any relief against the appellant during the said period. The Courts below had failed to see that the appellant had remarried and had a family to support and that the take home pay of the appellant was meagre. Both the trial Court, as well as the First Appellate Court ought to have taken into consideration the evidence of P.W.2, who spoke clearly about the respondent being the cause for the breakdown of the marriage. 11. Per contra the learned counsel appearing on behalf of the respondent had submitted that, between the years 1971 and 1985, six children were born out of the wedlock. Two sons had died. All the four daughters had got married. None of them had been maintained by the appellant. It is only due to the hard work and sacrifice of the respondent they had been brought up in life. It had also been stated that there was no pleading in the written statement, filed on behalf of the appellant in the suit, in O.S.No.689 of 2004, about the panchayat. The allegation of the appellant that the respondent was https://hcservices.ecourts.gov.in/hcservices/ having illicit intimacy with an employee of modern rice mill had not been proved. The appellant had also not been in a position to show that it was the respondent who had deserted him. In such circumstances, the Courts below had arrived at the right conclusions, while decreeing the suit in favour of the respondent. 12. In view of the submissions made on behalf of the appellant, as well as the respondent, and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned this Court is of the considered view that the appellant has not shown sufficient cause or reason to interfere with the judgment and decree of the Courts below. Both the Courts below had rightly held that the claims made by the defendant in the suit, who is the appellant in the present second appeal, had not been substantiated by sufficient evidence. The claim that the respondent had been living an adulterous life had not been proved. There is nothing to show that the respondent had deserted the appellant. Based on the salary statement of the appellant, marked as Ex.B-1, the trial Court had decreed the suit in favour of the respondent. Further, it had been noted that no formal divorce had taken place between the appellant and the respondent. The appellant had also failed to prove his claim that the respondent was leading an adulterous life to disqualify her from getting maintenance, as per Section 18(3) of the Hindu Adoptions and Maintenance Act, 1956. In such circumstances, the contentions raised on behalf of the appellant cannot be countenanced. As such, the second appeal is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar csh To 1) The Subordinate Judge, Panruti. 2) The District Munsif, Panruti. 3. The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.D.Baskar, Advocate, Sr.No.45925 S.A.No.803 of 2007 NG {CO} TP/23.8.2010. https://hcservices.ecourts.gov.in/hcservices/