1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.04.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.97 of 2011 and MP(MD)No.1 of 2011 M.Ayyadurai @ M.A.Durai .. Appellant/Defendant Vs. 1.Usha 2.Minor Abinaya (rep.by R1) .. Respondents/Plaintiffs Second Appeal filed under section 100 of CPC against the Judgment and decree dated 03.08.2010 passed in Appeal Suit No.45 of 2008 by the Principal Sub Court, Tirunelveli confirming the Judgment and decree dated 11.08.2008 passed in Original Suit No.83 of 2007 by the Principal District Munsif Court, Tirunelveli. For Appellant : Mr.S.P.Maharajan For Respondents : Mr.M.P.Senthil JUDGMENT The concurrent Judgments and decrees passed in Original Suit No.83 of 2007 by the Principal District Munsif Court and in Appeal Suit No.45 of 2008 by the Principal Sub Court, Tirunelveli respectively are being challenged in the present second appeal. 2. The respondents herein as plaintiffs have instituted Original Suit No.83 of 2007 on the file of the trial Court praying to pass monthly maintenance of Rs.3,500/- and also past monthly maintenance of Rs.24,500/-, wherein the present appellant has been shown as sole defendant. 3. It is averred in the plaint that the defendant has married the first plaintiff on 16.09.2004 and since then both of them have lived as husband and wife. On 01.06.2005 the first plaintiff has gone to her parental abode for delivery. On 04.09.2005 the first plaintiff has given birth to the second plaintiff and even though necessary information has been passed on to the defendant, he failed to see the plaintiffs. The defendant, his parents and his sister have demanded additional dowry of Rs.50,000/- and thereby caused mental torture to the first plaintiff. On 15.06.2006 the first plaintiff has given a police complaint and the same has been enquired into But the defendant has failed to live with the plaintiffs. The plaintiffs are not having sufficient means to maintain themselves. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant it is averred that it is false to say that necessary information has been given to the defendant with regard to birth of the second plaintiff and the defendant has failed to see her. It is also equally false to say that the defendant has refused to take back the plaintiffs and the defendant and his family members have demanded additional dowry of Rs.50,000/-. It is also equally false to say that the defendant and his family members had driven the first https://hcservices.ecourts.gov.in/hcservices/ 2 plaintiff to her parental abode. It is false to say that the defendant has been earning Rs.7,000/- per month. There is no merit in the suit and the same deserves to be dismissed. 5. In the additional written statement filed on the side of the defendant it is averred that the first plaintiff is working in the office of BSNL at Tirunelveli and thereby earned Rs.6,200/- per mensem. The defendant has served in Fire Service. On the basis of the complaint given by the first plaintiff, a criminal case has been registered against the defendant under sections 498(a), 406 and 506(1) of the Indian Penal Code. Now the defendant is getting monthly emoluments of Rs.7,406/- and after deduction he is getting only Rs.2,876/- and there is no merit in the suit and the same deserves to be dismissed. 6. On the basis of the rival pleadings raised on either side, the trial Court has decreed the suit as prayed for. Against the Judgment and decree passed by the trail court the defendant as appellant has preferred Appeal Suit No.45 of 2008 on the file of the first appellate Court. 7. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal with exemplary cost of Rs.5,000/-. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 8. As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 9. On the side of the appellant/defendant the following substantial questions of law have been raised for consideration: (a) Whether the Judgment and decree of the Courts below are sustainable in law in shifting the burden of proof on defendant for arriving at the conclusion about the salary received by the defendant in the absence of the documentary evidence filed by the plaintiff? (b) Whether the Courts below are right in granting maintenance for a sum of Rs.3,500/- in the absence of documentary evidence? (c) Whether the Courts below are right in decreeing the suit when the 1st plaintiff herself had voluntarily left the matrimonial home? (d) Whether the lower appellate Court is right in dismissing the appeal ignoring Ex.B1, which proves about the earning capacity of the 1st plaintiff? (e) Whether the lower appellate Court is right in failing to discuss about the issue with regard to the desertion of the plaintiff on her own even when the same is raised in the grounds of appeal? (f) Whether the reasoning given by the lower appellate Court for awarding exemplary cost is sustainable in law since the same did not satisfy the condition in Order 41 Rule 35(3) of CPC as well as sections 35 and 35A of CPC? https://hcservices.ecourts.gov.in/hcservices/ 3 10. The sum and substance of the case of the plaintiffs is that the defendant has married the first plaintiff on 16.09.2004 and for a short span both of them have lived as husband and wife and on 01.06.2005 the first plaintiff has gone to her parental abode for delivery and on 04.09.2005 she has given birth to the second plaintiff. The defendant, his parents and sister have tortured the first plaintiff by way of demanding additional dowry of Rs.50,000/- and since the first plaintiff has not been able to meet out the demands made by them, both the plaintiffs have been driven out from marital abode. Now both of them have lived separately without having sufficient means to maintain themselves. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint. 11. On the side of the defendant it has been contended that the dowry torture alleged to have been made by the defendant and others is false and the first plaintiff is an employee of BSNL at Tirunelveli and she is earning monthly salary and further the defendant is not having sufficient means to give monthly maintenance to the plaintiffs as demanded on their side and therefore, the present suit deserves to be dismissed. 12. As stated earlier, the trial Court has decreed the suit as prayed for. In the present suit two kinds of reliefs have been sought for. The first and foremost relief is to direct the defendant to pay past monthly maintenance of Rs.24,500/- and the second relief is to direct him to give monthly maintenance of Rs.3,500/- to the plaintiffs. 13. The learned counsel appearing for the appellant/defendant has contended that the first plaintiff has been working in BSNL office at Tirunelveli and thereby she is earning monthly salary and further, after deduction the defendant is getting only a meagre monthly salary. Under the said circumstances the defendant is not in a position to give monthly maintenance to the plaintiff. 14. In order to controvert the argument advanced by the learned counsel appearing for the appellant/defendant, the learned counsel appearing for the respondents/plaintiffs has contended that the first plaintiff is the wife of the defendant and the second plaintiff is their minor daughter and now the defendant is getting a monthly salary of Rs.12,000/- and further the first plaintiff is working in BSNL Office on contract basis and thereby earned only meagre monthly salary and the same is not sufficient to meet even the barest needs of the plaintiffs and therefore, the defendant is liable to pay monthly maintenance. Under the said circumstances both the Courts have rightly rejected the defence taken on the side of the defendant and altogether the present second appeal deserves to be dismissed. 15. It is an admitted fact that the first plaintiff is the legally wedded wife of the defendant. The entire argument advanced by the learned counsel appearing for the appellant /defendant is based upon Ex.B1. Ex.B1 is a salary certificate, wherein it has been stated that the first plaintiff is getting a monthly salary of Rs.2,382/- after deduction. It is also equally an admitted fact that the second plaintiff is the minor daughter of both the first plaintiff and defendant and she is now aged about 6. Under the said circumstances Rs.2,000/- is required for every month so as to maintain the second plaintiff. As stated earlier, the first plaintiff is getting only monthly salary of Rs.2,382/- and the same is not sufficient to maintain her https://hcservices.ecourts.gov.in/hcservices/ 4 and therefore, keeping in mind of the monthly salary of the first plaintiff, this Court is of the view that the first plaintiff is required Rs.1,000/- more per month and in aggregation the defendant can be directed to give monthly maintenance of Rs.3,000/- per month to the plaintiffs. With regard to past monthly maintenance, no argument has been advanced. 16. The first appellate Court has dismissed the appeal with exemplary cost of Rs.5,000/-. Considering the fact that the appellant/defendant has filed the first appeal against the Judgment and decree passed by the trial Court, wherein awarding exemplary cost is totally unwarranted and therefore, exemplary cost awarded by the first appellate Court is liable to be set aside and the quantum of future monthly maintenance awarded by the trial Court and confirmed by the first appellate Court is liable to be modified. Since the present second appeal is liable to be allowed with regard to the aspects mentioned supra, the substantial questions of law raised on the side of the appellant/defendant are not having substance at all. 17. In fine, this second appeal is allowed in part without cost at the stage of admission. Connected Miscellaneous Petition is closed. The concurrent Judgments and decrees passed by the Courts below are modified as follows: The respondents/plaintiffs are in aggregation entitled to get monthly maintenance of Rs.3,000/-. Past monthly maintenance awarded by the trial Court and confirmed by the first appellate Court is upheld. The exemplary cost awarded by the first appellate Court is set aside. Sd/- Deputy Registrar(LA) /TRUE COPY/ Assistant Registrar To 1.The Principal Subordinate Judge, Tirunelveli. 2.The Principal District Munsif, Tirunelveli. +1cc to Mr.M.P.Senthil, Advocate SR.No.15543 +1cc to Mr.S.P.Maharajan, Advocate SR.No.15156 SA(MD)No.97 of 2011 26.04.2011 mj PA/07.06.2011/4P/5C https://hcservices.ecourts.gov.in/hcservices/