Madras High Court
R.Sundaravalli vs R.Ramasamy on 8 April, 2021
Equivalent citations: AIRONLINE 2021 MAD 640
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.(MD)NO.870 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.870 of 2014 and
M.P.(MD)No.1 of 2014
R.Sundaravalli ... Appellant/Respondent/
Plaintiff
Vs.
R.Ramasamy ... Respondent/Appellant/
Defendant
Prayer: Second appeal filed under Section 100 of
C.P.C., to allow this second appeal and set aside the Judgment
and Decree dated 13.03.2014 made in A.S.No.19 of 2012 on
the file of the Sub Court, Kovilpatti reversing the Judgment
and Decree dated 06.06.2011 made in O.S.No.16 of 2005 on
the file of the District Munsif Court, Vilathikulam.
For Appellant : Mr.A.Arumugam,
for M/s.Ajmal Associates.
For Respondent : Mr.M.Solaisamy
***
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2 S.A.(MD)NO.870 OF 2014
JUDGMENT
The appellant Sundaravalli filed O.S.No.16 of 2005 on the file of the District Munsif Court, Vilathikulam, seeking the relief of maintenance and creation of charge on the schedule properties and for injunction restraining the respondent from alienating them.
2. The suit was decreed vide Judgment and Decree dated 06.06.2011 and the respondent was directed to pay a sum of Rs.500/- towards monthly maintenance. Charge was also created on the suit schedule properties and the respondent was also appropriately restrained from transferring or alienating or making encumbrance of the properties that may affect the aforesaid maintenance right. Aggrieved by the same, the respondent Ramasamy filed A.S.No.19 of 2012 before the Sub Court, Kovilpatti. The first appellate Court vide Judgment dated 13.03.2014 reversed the Judgment and Decree of the trial Court and allowed the appeal. Aggrieved by the same, this second appeal has been filed.
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3. The second appeal was admitted on the following substantial questions of law:-
“1. Whether the first appellate Court has correctly applied the legal provisions contained in Section 18 of Hindu Adoption and Maintenance Act to the facts and circumstances of the case?
2. Whether a creation of a charge for the maintenance of the wife over the husband's property is defeated by a mere mortgage executed by husband over one of the properties?
3. Whether the first appellate Court should have increased the maintenance amount by taking into consideration escalation of prices, invoking Order 41 Rule 33 of C.P.C?”
4. Heard the learned counsel on either side.
5. The appellant Sundaravalli got married to the respondent Ramasamy in the year 1987. A child was born http://www.judis.nic.in 3/10 4 S.A.(MD)NO.870 OF 2014 through the wedlock. The parties appear to have separated some time in the year 2002. The case of the appellant is that the respondent drove her out. The respondent had in his written statement denied the allegations made in the plaint.
The stand of the respondent is that the plaintiff had willfully deserted him and that she had left the matrimonial home on her own call. The respondent had further alleged that the plaintiff had taken the minor child Veera Nagendran along with her. The first appellate Court had given a finding that the plaintiff has failed to establish her case that her act of leaving the matrimonial home was triggered by the cruel conduct of the respondent. In as much as the respondent/defendant had agreed to take back the plaintiff and since the plaintiff was not willing to rejoin her husband, the first appellate Court reversed the decision of the trial Court and allowed the first appeal.
6. The learned counsel appearing for the respondent wanted me to sustain the aforesaid Judgment. He would state that no substantial question of law has really arisen for consideration.
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7. The learned counsel appearing for the appellant draws my attention to Section 18 of THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956. The said provision reads as follows:-
18. Maintenance of wife- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to http://www.judis.nic.in 5/10 6 S.A.(MD)NO.870 OF 2014 live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.''
8. In the case on hand, there is no dispute that the appellant is the legally wedded wife of the respondent. The marriage between the parties had taken place in the year 1987 and a male child was also born through the wedlock. The parties lived together for over 15 years. The separation between the two had taken place in the year 2002. The appellant does not appear to be a well educated woman. Admittedly, she was only a homemaker and not otherwise employed. If such a person is leaving the matrimonial home, http://www.judis.nic.in 6/10 7 S.A.(MD)NO.870 OF 2014 then, there must be certainly some solid justification for the same. Since the respondent has offered to take the appellant back, obviously, the appellant was not guilty of any marital conduct. If she was guilty of any marital conduct, certainly, the respondent would not have agreed to take her back. The appellant in her testimony had stated that the respondent is a spendthrift and he used to beat her and treat her cruelly. The appellant had examined herself as P.W.1.
9. If a woman after 15 years of marital life and having no other support, is leaving the matrimonial home, this Court must presume in her favour that she had a legitimate reason for doing so. She had left with her minor son. The allegation is that the respondent used to beat her. The appellant's evidence ought to have been accepted by the first appellate Court also. One cannot look for corroboration for what happened within four walls of a home. The appellant had only asked for Rs.500/- as monthly maintenance. By no stretch of imagination, can it be said to be excessive. When the respondent has not taken any step to have the marriage dissolved, he is liable to maintain his wife in terms of Section http://www.judis.nic.in 7/10 8 S.A.(MD)NO.870 OF 2014 18 of THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956. The Court below had cast an unreasonable burden of proof on the appellant to reverse the well considered decision of the trial Court. Regarding execution of mortgage over one of the suit properties, I must observe that Section 39 of the Transfer of Property Act, 1882 will take care of the situation and that cannot by itself defeat the rights of the wife.
10. Therefore, I have no hesitation to answer the first and second substantial questions of law in favour of the appellant.
11. The appellant sought Rs.500/- as monthly maintenance. It was decreed. She did not choose to challenge the decision of the trial Court. Therefore, there is no merit in the contention that the appellate Court ought to have enhanced the maintenance amount. Substantial question of law No.3 is answered against the appellant.
12. Therefore, the Judgment and Decree of the first appellate Court is reversed and the Judgment and Decree of the trial Court is restored.
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13. This second appeal stands allowed accordingly. No costs. Consequently, connected miscellaneous petition is closed.
08.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To:
1. The Sub Judge, Kovilpatti.
2. The District Munsif, Vilathikulam.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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