IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWELFTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY FIRST APPEAL NO : 2172 of 2001 (Appeal under Section: 96 of C.P.C., Against the judgment and decree dated 19/08/1997 in OS NO: 14 OF 1986 on the file of the court of the Senior Civil Judge, Peddapuram) Between: Dayana Gangadhara Prasad S/o.Venkata Narasimha Murthy R/o.Flat No.5, Hari Apartments J.N.R.Nagar, Venkojipalem Visakhapatnam ..... APPELLANT AND 1 Dayana Gangabhavani W/o.Gangadhara Prasad R/o.Goneda Peddapuram Taluk 2 Dayana Venkata Narasimhamurthy S/o.not known R/o.Vegeswarapuram W.G.Dist. 3 Dayana Suresh Chandrajee S/o.Venkata Narasimhamurthy R/o.Bhimavaram Bhimavaram DMC (Respondents 2 and 3 are not necessary in this appeal) .....RESPONDENT(S) Counsel for the Appellant:MR.VL.N.G.KMURTHY Counsel for the Respondent No.: SMT.N.(P).ANJANA DEVI, SATYANARAYANA The Court Delivered the Following JUDGEMENT:-- PSR, J. A.S.No. 2172 of 2001 Judgment This appeal is filed by the first defendant against the judgment of the learned Subordinate Judge, Peddapuram in O.S.No. 14 of 1986. The first defendant is the appellant herein. For the sake of convenience, the parties herewith would be referred to as they are arrayed before the trial Court. 2. The suit was filed for maintenance of Rs.1000-00 per month from 1.2.1983 to 31.3.1985; for future maintenance at the same rate; for separate residence and utensils etc., for return of Rs.50,000.00 kept with the first defendant and also for return of the gold and silver articles. 3. As per the plaint, the case of the plaintiff is that - the marriage between the plaintiff and the first defendant was performed on 9.5.1982 at Aryapuram Chamber of Godavari Timber Merchants’ Hall, Rajahmundry, as per Hindu rites. Defendant Nos. 2 and 3 in the suit are father and elder brother of the first defendant. Soon after the marriage, the marriage was consummated. At the time of marriage, father of the plaintiff presented Rs.50,000.00 in cash to her towards Pasupu kumkuma, which was entrusted to the first defendant with an understanding to return it as and when demanded by the plaintiff. Some time after the marriage, the first defendant took her to Rama Krishna clinic and Nursing Home, Jaggampeta on 15.1.1983 and got her pregnancy aborted. Thereafter, he started demanding the plaintiff to get money. The first defendant kept her jewellery and cash with him and sent her away to her parents house, promising to get her back and that he never got her back, in spite of her several efforts. The first defendant attempted to marry another girl. On knowing about the same, the plaintiff got published a publication in Andhra Patrika about the first marriage and she also got issued a registered notice dated: 3.3.1985 to the first defendant, who received the notice and sent a reply saying that he is not willing to take her back and sought for annulment of marriage. 2. In the written statement, all the defendants have admitted the marriage. It is their contention that the marriage was not consummated. The father of the plaintiff never presented Rs.50,000- 00 to her and there was no understanding to keep the same with the first defendant. In fact, plaintiff’s father has no capacity to present such huge amount. The first defendant never attempted to marry another lady and unnecessarily a publication was made with regard to the same lowering the prestige of the first defendant. In M.C.No. 4 of 1985, maintenance at the rate of Rs.400.00 was granted and that he is getting a net salary of Rs.1200.00. 3. On the basis of the above pleadings, the following issues were settled for trial: i) Whether the plaintiff is entitled to any maintenance? If so to what amount? ii) Whether the plaintiff is entitled for past maintenance and for Rs.35,000.00 for separate residence and utensils? iii) Whether the plaintiff is entitled for return of Rs.50,000.00 from the first defendant, which money was kept with him by the plaintiff? iv) Whether the plaintiff is entitled for the return of gold and silver articles mentioned in the plaint? v) Whether the plaintiff is entitled for expenses of Rs.2,000.00 towards costs for paper publication made by her? vi) To what relief? 4. On behalf of the plaintiff, PWs 1 to 5 were examined and on behalf of defendants DWs 1 and 2 were examined. Exs A-1 to A-46 and Exs B-1 toB-4 were marked on their respective sides, apart from Ex X-1 and Ex C1 to C-3 were also marked. 5. Considering the entire material on record, the learned trial Judge granted maintenance @ Rs.800.00 per month from 1.2.1983 to 31.3.1985; Rs.1,000.00 per month from 1.4.1985 and also granted Rs.35,000.00 for separate residence etc. Aggrieved by the same, the present appeal is filed by the first defendant. 6. Now the contention of the learned counsel for the first defendant/appellant is that there is no dispute about the marriage; but the marriage was never consummated, as the plaintiff was unfit for consummation and there were not living together. As such the plaintiff is not entitled for maintenance, as well the amount granted towards separate maintenance etc. 7. Learned counsel appearing for the plaintiff controverted the said contention. 8. Now the point for consideration is whether there are any grounds for interfering with the judgment and decree passed by the learned trial judge? 9. There is absolutely no dispute with regard to the marriage, which has taken place in the year 1982. The main dispute is with regard to the in capacity of the plaintiff for consummation, which according to the first defendant, the appellant herein, lead to disruption in the family life. The plaintiff contends that, the contention of the first defendant that there was no consummation of the marriage is incorrect and, in fact, immediately after the marriage, the marriage was consummated and she became pregnant. One day, the defendant came to the parents’ house of the plaintiff, took her out on the pretext of going to movie, took her to a Nursing home belonging to PW-5 and got her pregnancy aborted forcibly. Thus the contention of the plaintiff is that, in case, she was unfit for consummation, there was no question of her becoming pregnant and getting the same terminated. The doctor that conducted abortion is examined as PW-5, as referred to above. PW-5 stated that herself and her husband are running a nursing home and that she caused the abortion of the plaintiff. There is no reason for PW-5 to give false evidence. The contention of the first defendant is that she is related to the plaintiff. Even assuming that she is related to her, perhaps, she would not have gone to the extent of giving false evidence on such trivial matter. Further more, the fact is whether the plaintiff became pregnant and the same was aborted is not of any great importance, as, in case, she was unfit for consummation and consummation has taken place also, she is entitled for maintenance, as long as there is no annulment of marriage. However, in the circumstances, my finding would be that there was consummation of marriage, which, I am arriving at, on the basis of the evidence of PWs 1 and 5. 10. When there is no dispute about the marriage; when there is also no dispute about the parties living together and when the contention of the first defendant is that the wife is unfit for consummation, obviously, he is not interested in living with her and as such he would be liable to pay maintenance to her. 11. The learned counsel for the first defendant next contended that an amount of Rs.800.00 towards maintenance from 1.2.1983 to 31.3.1985 is on higher side. In the year 1997, when the judgment was pronounced, the amount, perhaps, was somewhat on higher side, but compared the same with the present day standards that is highly insufficient. However, as I cannot go into this, I am not going into that question. 12. The learned counsel for the first defendant submits that he is getting an amount of Rs.1200.00 only; that he is not having any regular income; he worked in various news papers and chemical factories and that he had absolutely no capacity of paying the amount awarded by the court below. 13. During the course of evidence, the plaintiff has stated that the first defendant owns a car. In his cross examination also the first defendant admitted that he owns a car. No doubt, immediately he stated that the car pertains to her sister. These, circumstances show that the first defendant owns a car. Unless, he has reasonable income, there was no possibility of his owning and maintaining a car. The learned counsel for the first defendant submits that he might owned a car for some time; but at the relevant time, he had no income and no car. But the fact remains that at one point of time, the first defendant owned a car and that he had some other income, apart from his alleged salary of Rs.1200-00 per month, as with Rs.1200.00 per month, it may not be possible for any one to purchase and maintain a car in 1997. Thus, it has to be accepted that the first defendant/appellant has reasonable income; even assuming that he had no reasonable income also, he cannot be absolved of the responsibility of paying maintenance and the amount granted is being only Rs.800-00 and Rs.1000.00 which for the present day standards, is absolutely trivial, and, in fact, is not sufficient for maintenance of an individual at all. 14. The learned counsel for the first defendant also contended that the plaintiff/wife herself owns certain properties and she does not require any maintenance. But there is no material on record to show the same. Considering all these circumstances, the amount of maintenance granted and even the amount of Rs.35,000.00 granted for separate maintenance also can not be said to be unreasonable. 15. In these circumstances, I do not see any merit in the appeal and it is accordingly dismissed with costs. _______________________ P. SWAROOP REDDY,J. Dated:12—08—2009 *BVS