Dismissed

Gandhi v. Kamala(Alias)Hemalatha

Madras HC11 Nov 2016SA/1094/1996

Case brief

AI extract

What is this about?

In a second appeal, the Court held that the respondent wife is entitled to maintenance as she did not voluntarily desert the husband. The Court found her separate residence was due to the appellant's conduct and harassment by his family, thereby satisfying conditions under the Hindu Adoptions and Maintenance Act to claim maintenance.

What did the court decide?

Judgment and decree of the First Appellate Court confirmed; appellant directed to pay enhanced maintenance of Rs.325 per month.

Gandhi Vs Kamala(Alias)Hemalatha — Maintenance and Alimony | Madras HC (2016)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

RESERVED ON : 09.11.2016

¶3

PRONOUNCED ON : 11.11.2016

¶4

CORAM

¶5

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

¶6

Second Appeal No.1094 of 1996

¶7

Gandhi ..Appellant/Defendant

¶8

Vs Kamala alias Hemalatha ..Respondent/Plaintiff

¶9

Prayer:Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 29.01.1996 in A.S.No.57 of 1995 and the Cross Appeal on the file of the Principal Subordinate Court, Nagapattinam partially confirming the judgment and decree dated 30.04.1993 made in O.S.No.123/1991 on the file of the District Munsif Court, Nannilam.

¶10

For Appellant : Ms.R.Anu for Mr.Srinath Sridevan For Respondent : Mr.A.Muthukumar JUDGMENT

¶11

The appellant/husband who is directed to pay Rs.325/- per month as maintenance to the respondent/wife by the First Appellate Court has preferred the present second appeal on the ground that he is not liable to pay any amount as maintenance to the respondent/wife as, she has deliberately deserted him and had refused to return to the matrimonial home. The respondent/wife has not satisfied with the condition set out under Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956 so, she is not entitled for any maintenance.

¶12

2.The brief facts leading to this case are as under:-

¶13

The appellant and the respondent got married as per the Hindu rites and customs on 05.06.1989. Immediately after marriage, due to the intervention of the month of “Aadi (Mo)”, the respondent/wife was sent to her parents house on 15.07.1989. She was supposed to return to the matrimonial home on 13.08.1989

¶14

https://hcservices.ecourts.gov.in/hcservices/

¶15

which she did not. The appellant/husband issued a legal notice dated 22.08.1989 which was replied by the respondent/wife expressing her readiness to join the appellant. However, the appellant has filed H.M.O.P.No.8/1990 before the Subordinate Court, Thanjavur for restitution of conjugal rights and later withdrew it.

¶16

3.Since, the respondent/wife was deprived of maintenance, she has sought for past and future maintenance @ Rs.600/- per month. The suit was contested by the appellant/husband on the ground that though the marriage took place on 05.06.1989, his wife went to her parental home for Aadi Perukku on 15.07.1989, she did not return back to the matrimonial home on her own. Contrarily on 13.08.1989, when the appellant and his parents went to the respondent's parents house, they were not properly treated and when the appellant called her to join him, she refused to come to the matrimonial home on the protest that unless independent house is set up, she will not return to the matrimonial home. Denying the allegation that sridhana properties and the education certificates of the respondent/wife are with him, the appellant/husband, contended that the respondent being a graduate conducting tution for children and running a fancy store at Thanjavur earning Rs.500/- per day and therefore, the claim of Rs.600/- per month as maintenance is unjust.

¶17

4.The trial Court after considering the evidence let in by the parties, has held that the appellant has not come out with true facts of the case. On analysing Ex.A.1 – notice; Ex.A.2 – reply notice and Ex.A.3 – rejoinder, the trial Court has held that the appellant herein has initially alleged that his wife, the respondent herein is not co-operating for conjugal relationship and fears that she is not fit to be a wife. He has never alleged that the respondent refused to join him unless separate matrimonial home is set up. While so, the trial Court taking note of the conduct of the appellant, that he earlier filed H.M.O.P.No.8/1990 for restitution of conjugal rights and later withdrew the same, immediately when the respondent herein filed an Interlocutory Application claiming interim maintenance.

¶18

5.The trial Court has held that the appellant herein is liable to pay maintenance. While ascertaining the quantum of maintenance, taking note of the fact that the appellant is employed as Typist in Tamil Nadu Civil Supplies Corporation (T.N.C.S.C), with a monthly salary of Rs.2,200/-, after taking into consideration of his personal expenses and maintenance of his family, Rs.200/- per month was awarded as maintenance to the respondent/wife. While awarding Rs.200/- per month as maintenance, the trial Court rejected the claim of the respondent/wife towards past maintenance. Aggrieved by the

¶19

https://hcservices.ecourts.gov.in/hcservices/

¶20

finding of the trial Court, both the appellant as well as the respondent have preferred appeal and cross appeal respectively before the subordinate Court.

¶21

6.The First Appellate Court taking note of the fact that the allegation of voluntary desertion on the part of the respondent/wife has been disproved and positively held that due to harassment of demanding jewel and money by the appellant, the respondent was not able to join him and held that the appellant/husband is liable to pay maintenance to the respondent/wife. In respect of the quantum of maintenance, the First Appellate Court while discussing the cross appeal of the respondent for enhancement of maintenance, has taken note of the fact that the appellant has to feed his parents, unmarried sister and brother and therefore, from out of the income of Rs.2,020/- the appellant is liable to pay 1/6^th of his income to the respondent/wife which arrives at Rs.325/- per month. With this modification, the First Appellate Court has disposed of the appeal and cross appeal preferred by the appellant and the respondent respectively.

¶22

7.Aggrieved by that, the appellant has filed the present second appeal in which, this Court has formulated the following substantial questions of law:-

¶23

“(a)Whether the wife who has deliberately deserted her marital home and could clearly deposes in the witness box that she is not willing to return to the marital home, is entitled to any maintenance from the husband ? And

¶24

(b)Whether the respondent has not forfeited her right to maintenance in as much as she has not satisfied any of the conditions set out under Section 18(2) of the Hindu Adoptions and Maintenance act for living away from the husband ? ”

¶25

8.The learned counsel for the appellant submitted that in her deposition, the respondent/wife has clearly deposed that she is not willing to join the appellant. Having deliberately deserted the appellant, the respondent is not entitled for any amount as maintenance.

¶26

9.This Court has given anxious consideration to the arguments advanced by the learned counsel for the appellant. The learned counsel for the appellant has read a portion of the respondent's deposition and tried to convince this Court that the respondent for no reason left the matrimonial home, within 40 days from the date of marriage and refused to return back.

¶27

https://hcservices.ecourts.gov.in/hcservices/

¶28

10.The evidence show that, after the marriage, as per the tradition of Hindu family, the spouse has been separated during the month of “Aadi” and the respondent has gone to her parental home on 15.07.1989. There is no evidence or proof to show that the appellant herein attempted to bring his wife back to the matrimonial home. He has issued a legal notice which is marked as Ex.A.1 dated 22.08.1989 i.e., within two months from the date of marriage, alleging that the marriage was not consummated and the respondent is unfit for marital life. After making such a derogatory allegation against his wife in his notice, he has ventured to file an application for restitution of conjugal rights. When the respondent has contested that application on the ground that unless he pay interim maintenance, it is difficult for her to defend the case, he has cunningly withdrawn that Original Petition through a memo – Ex.A.5, stating that he reserves his right to seek divorce against the respondent/wife.

¶29

11.All these facts have been gone through by the Courts below and has found that the appellant herein who is an employee of T.N.C.S.C., as a Typist is liable to pay maintenance to the respondent, since, it is he who deserted his wife and not the respondent/wife. When the finding of fact by the Courts below is concurrent and against the appellant herein, choosing one line out of blue from the deposition of the respondent, the appellant has chosen to plead that he is at no fault in the breakdown of the marriage and tried to put the blame at the door steps of the respondent.

¶30

12.The relevant portion of the deposition of the respondent is extracted by the First Appellate Court and for the sake of convenience, this Court extracts the same hereunder:-

¶31

“,e;j tHf;fpid epYitapy; itj;Jf;bfhz;nl vd;id miHj;Jg;ngha; vd;dplk; md;ghf FLk;gk; elj;j jahh; vd;W TwpdhYk; ,t;tst[ gpur;ridfSf;F gpwF mtUld; nrh;e;J thH Koa[k; vd;Wk; mJ KoahJ vd;fpnwd;/ fhuzk; khkdhh;. khkpahh; vd;id bfhLik gLj;Jthh;fs;/ khkpahh;. khkdhh; ,y;yhky; jdp Foj;jdk; elj;j vjph; thjp jahh; vd;whYk; mth; mth;fs; ngr;ir nfl;Lf; bfhz;L vd;id bfhLik gLj;Jthh; vd;fpnwd; ”.

¶32

13.This portion of the respondent's deposition if read in full, it is clear that the conduct of the appellant and his parents has prevented the respondent from joining the appellant and when it was suggested to her whether she is ready to join the appellant, she has expressed her apprehension that with all

¶33

https://hcservices.ecourts.gov.in/hcservices/

¶34

the problems and pending case, it is difficult for her to join the appellant. When the respondent has expressed a genuine apprehension that the appellant will harass her at the behest of in-laws, it is the duty of the appellant to dispel it. Unfortunately, in this case, there is nothing on record to show the appellant made any attempt to remove the apprehension of the respondent.

¶35

14.While the evidence is so categorical, it is difficult for this Court to accept the plea of the appellant that the respondent has voluntarily left the matrimonial house and not entitled for maintenance. The above deposition of the respondent is quite natural and genuine, expressing her apprehension about the conduct of the appellant and her in-laws. This will not, dis-entitle her from claiming maintenance. This cannot be construed as forfeiting her right to maintenance. The condition imposed under Section 18(2)(a) of the Hindu Adoptions and Maintenance Act, 1956 is attracted in this case. The respondent herein had clearly proved and established to the satisfaction of the Courts below and also to this Court that she is forced to live separately from her husband and not on her own volition. The appellant herein is grossly guilty of desertion. He has abandoned his wife without any reasonable cause and had tried to fetch some cause to justify his unreasonable conduct alleging that his wife is not fit for matrimonial life and the marriage not consummated. This has been disproved during the course of cross examination through the mouth of the appellant. Therefore, this Court finds no merit in this appeal.

¶36

15.It is submitted by the learned counsel for the appellant that the appellant is retired from service and now, he is earning only Rs.2,000/- per month as pension. While the learned counsel for the respondent submitted that though the First Appellate Court has enhanced the maintenance of Rs.200/- awarded by the trial Court to Rs.325/- per month, in view of the interim stay granted by this Court, the appellant is paying only Rs.200/- per month all through out to the respondent/wife. After receiving substantial sum of money as retirement benefits, he is trying to deprive the meager subsistence money awarded by the Courts below as maintenance to the respondent/wife. The learned counsel further submitted that now, the respondent/wife has filed a separate suit for enhancement of maintenance.

¶37

16.Taking note of all the above facts, while dismissing this second appeal with costs, this Court passes the following order.

¶38

(i)The judgment and decree passed by the First Appellate Court is confirmed and the appellant is directed to pay the enhanced maintenance amount of Rs.325/- per month as awarded by the First Appellate Court to the respondent/wife.

¶39

https://hcservices.ecourts.gov.in/hcservices/

¶40

(ii)The arrears of maintenance shall be paid to the respondent/wife in three equal installments along with the future maintenance from next month onwards.

¶41

(iii)This judgment is passed without prejudice to the suit filed by the respondent/wife for further enhancement of maintenance.

¶42

Sd/-
Assistant Registrar(CCC)
//True Copy//
Sub Assistant Registrar
jbm
To
1.The Principal Subordinate Judge,
Nagapattinam.
2.The District Munsif, Nannilam.
+ 1 cc to Mr.A.Muthukumar, Advocate Sr.65359
Second Appeal No.1094 of 1996
VD(CO)
EU 20.1.17

¶43

https://hcservices.ecourts.gov.in/hcservices/

Gandhi v. Kamala(Alias)Hemalatha

Case brief

What is this about?

What did the court decide?

Gandhi v. Kamala(Alias)Hemalatha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

T.S.Abdul Malick Sahib Vs M.Viswanathan

Ramanatha Udayar Vs Ramanatha Udayar

M.Ellappan Vs v.P.Jayarama Naidu

G.Karunamoorthy Vs a/M Kandasamy Thirukoil

Gandhi Vs Hemalatha

Vs