THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD F.C.A.Nos.21 of 2007 and 24 of 2007 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) Both the appeal are directed against the judgment and decree passed in O.S.No.13 of 2002 by the Judge, Family Court, Vijayawada on 28.11.2005. The appellants in F.C.A.No.21 of 2007 are the wife and son of the respondent/husband and they filed the appeal for granting maintenance as claimed by them in the suit. The appellant in F.C.A.No.24 of 2007 is the husband of the respondent No.1 and father of respondent No.2, questioning the judgment and decree granting maintenance to the respondents. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. The appellants in F.C.A.No.21 of 2007, who are wife and son of the respondent therein has filed the suit for grant of monthly maintenance at the rate of Rs.5,000/- to the wife and Rs.2,000/- to the son and also for arrears of maintenance from 09.11.99 till the date of filing of the suit. According to them the marriage of 1st plaintiff and defendant was performed on 04.06.1998 as per the Hindu rites and customs at Nidamanuru village. 2nd plaintiff is the son of 1st plaintiff and defendant. He is under the care and custody of the 1st plaintiff. The parents of the 1st plaintiff gave an amount of Rs.1,00,000/- to the defendant towards family and marriage expenses and also an amount of Rs.2,00,000/- towards pasupukumkuma at the time of marriage. The defendant also received a sum of Rs.2,00,000/- for the improvement of his business. The parents of the 1st plaintiff also presented 3 sovereigns of gold chain and one sovereign of gold ring to the defendant. The defendant did not treat the 1st plaintiff with love and affection and used to abuse her in filthy language and harassed her on flimsy grounds for several times. He also demanded her to bring money from her parents to meet his demands and as well as the demands of other family members. The 1st plaintiff also asked her parents to give money but her parents were not in a position to meet the demands of the defendant and his family members. The defendant did not heed to her words and beat her indiscriminately. He addicted to vices and return back to the house in the mid-night in drunken condition and beat her. The 1st plaintiff requested him to change his attitude in order to save the prestige of the family but he did not change his behaviour and threatened to kill her. While she carrying 5th monthly pregnancy, her husband and his family members failed to provide medical care and other necessities and she was necked out from their house. She joined her parents and took shelter at her parents’ house. Her parents are not in a position to bear the expenses of her, but they have performed necessary ceremonies pertaining to her child. The defendant did not turn up to attend those ceremonies and never shown any paternal affection towards the 2nd plaintiff. The father of the 1st plaintiff has sent two mediators namely I.Satyanarayana and D.Gandhi to the house of defendant with a request to take the 1st plaintiff to his marital fold, but they did not heed to the words of the mediators. Thereafter, the defendant got issued a legal notice dated 09.11.1999 to the 1st plaintiff asking her to join him and lead marital life with him. The 1st plaintiff got issued suitable reply notice narrating the entire facts and demanded him for the payment of maintenance. On receipt of the said legal notice the defendant came to the house of the 1st plaintiff and took her to his house at Seetharampuram. After some period, he again created several problems and necked out the 1st plaintiff and her son within a week. He married another woman by name Padma, d/o Prameela of Ramachandra Palem, Nuttakki Mandal, Guntur District at the instigation of his mother and other family members and leading marital life with her secretly. She gave a report against her husband and others in Patamata police station on 27.12.2001 and police registered a case in Crime No.632 of 2001. Thereafter, he filed O.P.No.120 of 2001 under Section 9 of Hindu Marriage Act for restitution of conjugal rights. She filed her counter and contesting the matter. In spite of intervention of elders and her parents, there was no change in the attitude of the defendant. The defendant is proprietor of M/s Bhavani live channel communications system and his office is situated at Madhura Nagar, Vijayawada. He is having 1,000/- and getting income of Rs.40,000/- p.m. He owns a residential building at Seetharampuram and landed properties at Gudavalli, Vijayawada Rural Mandal. The 1st plaintiff has no source of income. Hence they are entitled for maintenance at Rs.5,000/- to the 1st plaintiff and a sum of Rs.2,000/- to the 2nd plaintiff and for past maintenance for 28 months. The defendant has filed the written statement admitting the relationship and the marriage between them. But he denied about the payment of Rs.2,00,000/- towards Pasupukumkuma and Rs.1,00,000/- for improvement of his business and also presentation of gold chain and gold ring to him at the time of marriage. He denied the other allegations made against him by the plaintiff in the suit with regard to the ill-treatment and harassment caused to the 1st plaintiff and driving her out of the house. He also denied that he is proprietor of M/S Bhavani live channel communications system and having 1,000 connections and earning Rs.40,000/- per month and also having other properties. According to him, the claim of the 1st plaintiff for Rs.5,000/- per month for herself and Rs.2,000/- to the 2nd plaintiff is baseless and the 1st plaintiff neglected him without any reason. He vexed with the attitude of the 1st plaintiff and filed the petition for restitution of conjugal rights. At present he is working under private management and earning Rs.1,500/- per month. The 1st plaintiff is doing finance business with the help of her father at Nidamanuru. Hence they are not entitled for nay maintenance. On the above pleadings, the trial Court has framed the following issues. (1) Whether the plaintiffs 1 and 2 who are the wife and son of the defendant are entitled for recovery of arrears of maintenance from 09.11.99 till the date of filing of the suit at Rs.5,000/- to the 1st plaintiff and Rs.2,000/- to the 2nd plaintiff in total a sum of Rs.1,96,000/-? (2) Whether the plaintiffs 1 and 2 are entitled to claim future maintenance of Rs.5,000/- to the 1st plaintiff and Rs.2,000/- to the 2nd plaintiff from the defendant from the date of filing of the suit? (3) To what relief? The 1st plaintiff examined herself as P.W.1 and also examined Assistant Commissioner, Sales Tax as P.W.2, the owner of the house as P.W.3 and the Income Tax Inspector as P.W.4 and got marked Exs.A.1 to A.9 and Exs.X.1 to X.4. The defendant examined himself as D.W.1 and no documents were marked on his behalf. Taking into consideration of the said oral and documentary evidence, the Trial Court partly decreed the suit by granting maintenance at the rate of Rs.2,500/- per month to the 1st plaintiff and Rs.1,000/- per month to the 2nd plaintiff towards past and future maintenance. Aggrieved by the said judgment and decree, the wife and son has filed the appeal for grant of maintenance as claimed by them in the suit and the husband has filed the appeal questioning the awarding of the said maintenance. Now, the point that arises for consideration: Whether the wife and son of the respondent/defendant are entitled for maintenance as claimed by them? P O I N T : There is no dispute with regard to the relationship between the 1st plaintiff and defendant. According to the plaintiffs, the defendant has ill- treated her and never shown any love and affection towards her from the date of marriage and she was made to work in the house as a servant maid and the defendant used to come home in drunken condition at midnight and used to beat her whenever she questioned his attitude. He also demanded to get money from her parents and when she expressed her inability to get the money from her parents as they are not in a position to pay the said amount, the defendant used to beat her indiscriminately. When she was carrying 5th month pregnancy, she was driven out of his house and in spite of her efforts made through mediators requesting him to take back her into his marital fold, he refused for the same. Thereafter, the respondent / husband got issued a legal notice asking her to join with him, thereafter she gave a suitable reply narrating the entire facts and prayed for maintenance. On receipt of the said reply, she has taken back and kept in his house for about one week and again started harassing her and driven her out of his house. Since then she is living with her parents in their house. The respondent/ husband denied the allegations made against him by the 1st plaintiff. According to him, in spite of issuance of notice demanding her to join him, she did not join him, which compelled him to file the O.P.No.120 of 2001 under Section 9 of Hindu Marriage Act for restitution of conjugal rights. During the pendency of the said O.P., she has filed the present suit for maintenance. He further pleaded that the 1st plaintiff is doing finance business and he is working under private management and earning Rs.1,500/- per month. As such he has not capacity to pay maintenance as awarded by the trial Court. Now, it has to be considered whether the 1st plaintiff is residing separately due to any reasonable cause in order to claim maintenance from her husband. P.W.1 in her chief-examination has specifically stated about the allegations made by her against the defendant in the suit. In the cross- examination nothing could be elicited with regard to her leaving matrimonial house without any reasonable cause. P.W.1 has specifically stated that she was treated with cruelty from the beginning of the marriage and he never treated her as his wife and made her to work as servant-maid and used to demand her to get money from her parents, for which she expressed that her parents were not in a position to meet his demand. He used to beat and harassed her and when she was carrying 5th pregnancy, she was driven out the house and he never attended the ceremonies performed by her parents after birth of the child. He has not looked after the welfare of the 2nd plaintiff. Even though D.W.1 denied the allegations made against him by the 1st plaintiff, could not establish about the steps taken by him to get her back to the matrimonial home. According to him, he has issued legal notice demanding the 1st plaintiff to join him. According to P.W.1, she has given suitable reply notice to the notice issued by the defendant. Thereafter, defendant took her to his house, after some time he again started harassing and beating and driven her out of his house. It is specifically alleged by P.W.1 that the defendant married one Padma and living with her separately. Therefore, from the above evidence it is evident that the 1st plaintiff was made to live separately from the defendant in her parents’ house for a reasonable cause. Since the 1st plaintiff is living separately due to the conduct of the defendant and 2nd plaintiff being the son of the defendant, they are entitled for the maintenance from the defendant. With regard to the quantum of maintenance, the husband’s counsel has pleaded that the defendant/husband is getting only Rs.1,500/- per month by working in a private organization and he has no capacity to pay the maintenance as awarded by the trial Court, as such the same is liable to be set aside. On the other hand the appellant/wife’s counsel has pleaded that the plaintiff is running M/s Bhavani live channel communications system and he is having 1000 connections and earning Rs.40,000/- per month. D.W.1 had denied about the same. According to him, the said channel was belongs to his brother and his brother has transferred the same in the name of his mother after his purchasing lorry and became a lorry operator and he is not the owner of the said M/s Bhavni live channel communications system. The 1st plaintiff in order to establish the income of the defendant examined P.W.2, Assistant Commissioner, Sales Tax Office. He produced Exs.X.1 to X.4 relating to M/s Bhavani Live Channel. P.W.2 has stated that as per their office correspondence under Ex.X.1, Sri Murali is the operator of the said M/s Bhavani Live channel and paid commercial tax to the Commercial Tax Department. Apart from P.W.2, the 1st plaintiff examined P.W.4, Income Tax inspector, who has stated that the defendant is income tax assessee for the financial year 1999-2000 and he filed income tax returns for the financial year 1999-2000 as proprietor of M/s Bhavani Live Channel, Madhuranagar, Vijayawada and Ex.A.9 is the said return. As per the returns, the defendant is having capital amount of Rs.1,72,432/- during the financial year 1999-2000 and his net profits for the financial year 1999-2000 was of Rs.66,739-95 ps. Thus, from the evidence of P.Ws.2 and 3, it is established that the defendant is the proprietor of M/s Bhavani Live Channel and he is a commercial tax assessee and income tax assessee. On the other hand, D.W.1 could not produce any evidence to show that he is working in a private organization and earning only Rs.1,500/- per month. P.W.1 categorically stated that her husband is the proprietor of M/S Bhavni Live Channel and having 1000 connections and earning Rs.40,000/- per month. The trial Court has awarded only Rs.2,500/- per month to the 1st plaintiff and Rs.1,000/- per month to the 2nd plaintiff, even though hold that the defendant is earning Rs.40,000/- per month. The said amount awarded by the trial Court is not sufficient for the maintenance of the plaintiffs. Taking into consideration of the income of the defendant, 1st plaintiff being the wife and 2nd plaintiff being the son of the defendant are entitled for the maintenance at the rate of Rs.5,000/- per month and Rs.2,000/- per month respectively as claimed by them. In the result, the F.C.A.No.21 of 2007 is allowed and the respondent/husband is directed to pay maintenance at the rate of Rs.5,000/- per month to the 1st plaintiff and Rs.2,000/- per month to the 2nd plaintiff from the date of filing of the suit and also to pay the past maintenance at the same rate for 28 months as claimed by them. Consequently, the F.C.A.No.24 of 2007 is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:14-12-2011 Ksp