Madras High Court
Meera Nireshwalia vs Sukumar Nireshwalia on 15 December, 1993
Equivalent citations: AIR1994MAD168, II(1994)DMC562, (1994)IMLJ242, AIR 1994 (NOC) 168 (MAD), (1993) 2 MAD LW 327, (1993) 2 MAD LJ 371, (1995) 1 HINDULR 126, (1994) 1 MAD LJ 242, (1994) 1 MAD LW 612, (1994) MATLR 178, (1994) 2 DMC 562
ORDER Abdul Hadi, J.
1. These two appeals arise out of the same suit O. S. No. 67 of 1991 on the file of the Principal Family Court, Madras. The plaintiff-wife is the appellant in A.S. 800 of 1993 which has been filed by her as an indigent person. She also filed the said suit as an indigent person. The defendant-husband is the appellant in A. S. No. 841 of 1993.
2. The said suit is for past maintenance for a period of three years prior to the date of the plaint, 1-4-1991 at the rate of Rs. 10,000/-per month, in all amounting to Rs. 3,60,000/ -and for future maintenance at the same rate, in all amounting to Rs. 1,20,000/-. The court below has granted a decree only at the rate of Rs. 1,000/- per month. In other words, the court below has granted a decree for Rs. 36,000/- for the above said three years prior to the date of suit as against the claim of the plaintiff for a total sum of Rs. 3,60,000/-for the above said three years. The Court below has also granted future maintenance at the same rate of Rs. 1,000/- from the date of the plaint till the lifetime of the plaintiff. With reference to the disallowed portion of the plaintiff's claim, A. S. 800/93 has been filed by the plaintiff. On the other hand, the husband contending that the court below has erred in granting the decree for maintenance has preferred A. S. No. 841/93, praying/or dismissal of the suit.
3. On the ground the defendant husband has deserted the plaintiff-wife, without any reasonable cause and neglected her wilfully the plaintiff made the above said maintenance claim. But the court below held that there was no desertion of the wife by the husband and that the case would not come under S. 18(2)(a) of the Hindu Adoptions and Maintenance Act, 1956 Central Act 78/1956 (hereinafter referred to as the Act), which speaks about the above said desertion read with S. 18(1) of the Act, but the case would come under S. 18(2)(g) of the Act which speaks about 'any other cause justifying her living separately' read with S. 18(1) of the Act. On that ground Court accepted the maintenance claim of the wife and granted the above said decree.
4. The plaint allegations may be summarised as follows: Tire plaintiff has married to the defendant at Bombay on 18-5-1946 and the said marriage was celebrated as per Hindu rites. They have three children all of whom are married and leading independent lives. In 1956, the defendant was allotted a house under the Shanoy Nagar Housing Board LIG Scheme (at Madras). The payment for the said house had to be made on monthly instalments. The defendant was quite irresponsible towards the plaintiff and her family and would disappear for months together. The plaintiff paid towards the above said instalments to the Ho.using Board. In 1975, the allotment was transferred to the plaintiff's name. But, subsequently, the defendant took the sale deed in his name from the Housing Board. The defendant started threatening to sell the house and the plaintiff opposed the same as she had contributed towards a major share for the purchase of the said house by pledging her jewels. Due to the defendant's conduct, the plaintiff had to file O.S. No. 7325/85 of the file of City Civil Court, Madras against the defendant and the defendant undertook not to evict the plaintiff except by due process of law. The defendant, without informing the plaintiff sold the said house by a sale deed dated 30-9-1988 to one Dr. Saleem and his wife. The said purchaser in collusion with the police and others employed a most dubious method of dispossessing the plaintiff by detaining the plaintiff in the Kilpauk Mental Asylum. The plaintiff challenged the said illegal detention and sought compensation from the State Government in W. P. No. 15671/91 on the file of this court. By order dated 20-11-1990, this court directed the State Government to pay a sum of Rs. 50,000/- as compensation. By the said order this court also directed an enquiry into the nature of illegal detention. The purchasers undertook to pay the rent for a flat for the plaintiff. In the appeal against the said order, a bench of this court had stayed the further proceedings pending appeal. The sum of Rs. 50,000/- has been deposited in the court by the Government. The plaintiff has filed criminal complaint and a suit against various parties with the help of the legal aid. For the past several years, the plaintiff had no income and had been depending on the charity of relatives and she is forced to stay in a hostel. All her jewellery have been sold, towards the construction of the above said house. The defendant is bound to maintain the plaintiff, but, failed to do so. He was working in Glaxo Industries a multi national concern and retired as All India Senior Marketing Manager from the said company in 1976. After his retirement he was employed in various capacities. Between 1977-80 he was involved in the sales of management publications. After retirement, the defendant in 1980 took up another assignment as a General Manager (Marketing) in Ruchi Food Products. While he was in Glaxo, he was drawing Rs. 7,500/- as salary per month inclusive of Company quarters with car and other benefits. After retirement, he was drawing an equal sum from Ruchi Food Products. He also sold his Anna Nagar house for a sum of Rs. 10,00,000/-. He has assets worth Rs. 20,00,000/-. He has further invested in lot of stocks and shares. The defendant has deserted the plaintiff without any reasonable cause and has wilfully neglected. The defendant never showed any responsibility towards the plaintiff. She had to manage single handedly for the past so many years. She has no livelihood or income. She does not possess any immovable property. In 1974 defendant deserted the plaintiff. This allegation is made in Para 10 of plaint. (The plaint is dated 1-4-1991).
5. The allegations in the written statement may be summarised as follows: The plaint contains extraneous matters which have no bearing on the central issue relating to the prayer in the suit. Therefore, this written statement would primarily focus on the basic question of alleged desertion on the part of the defendant. The allegation that the defendant has descried the plaintiff is a blatant lia. It is actually the plaintiff who has deserted the defendant. She has deserted the defendant in 1974 for three years and again from 1984 to date. On both the occasions, the defendant tried his utmost to dissuade plaintiff from staying away from him and requested her to come and stay with him, but without success. The defendant even tried through close friends and relatives and also through several letters to plaintiff to persuade her to come and stay with the defendant. But, those efforts met with down right refusal. The defendant even approached Swami Parama-chananda (one of Swami Chinnayananda's) disciples whom she was said to have held in high esteem, to help in bringing about a raunion. The said Swamiji's help was sought by their son and one of their sons-in-law. All those attempts were in vain. The allegation that the plaintiff has no income or livelihood, even if true, is absolutely of her own making. She has adamantly refused to rejoin her husband even after his bona fide request. She has deliberately chosen to stay away from him without justification and is therefore not entitled to maintenance. The defendant is now aged 73 years and in failing health. His potential for gainful employment in the future is virtually nil. The plaintiff being very much younger by about 12 years and in proper health should have as a dutiful wife stayed with the husband. It is true in 1956, the defendant was allotted the above said Shenoy Nagar House under Hire Purchase System and all that was required of the defendant was initial deposit of about Rs. 1,400/- and monthly instalments about Rs. 70/- only spread over for a period of 20 years. The plaintiff's allegations regarding these payments as being made by her are false. Her statement that this property was transferred to her name in 1975 is equally false. Though the plaintiff filed O. S. No. 7325/ 85, she later approached the defendant with the offer that if she was not evicted from the suit properly except by due process of law, she would not press the suit, since it was never the intention of the defendant to evict the plaintiff except by due process of law, this undertaking was given and accordingly the suit was dismissed. The defendant had a clear and absolute title over the suit house and hence sold it to the above said purchasers. However, to safeguard the plaintiff against any illegal eviction an agreement was entered into between the said pruchasers and the defendant the plaintiff should not be evicted except by due process of law. However, presumably the purchasers violated this agreement and got the plaintiff evicted by the most heinous and dubious means enlisting the services of the Police and the Superintendent of the Mental Hospital, Kilpauk. In consequence the purchasers had to face the above said writ petition. The defendant who was one of the respondents in the said petition, extended full support to the plaintiff. The defendant has no knowledge of the criminal complaint and the , suits against the various parties, referred to in the plaint. The allegation that the plaintiff sold all of her jewellery for the construction of the above said house is a blatant lie, because, the property under the lease-cum-sales Scheme comprising an already constructed house on 2 grounds, and the monthly instalment of Rs. 70/- payable in a period of 20 years, were towards the cost of the property as a whole. No lump-sum payment was involved towards the purchase of the said house and there was no need for the sale of her jewellery. The plaintiff has needlessly brought untold hardship both on defendant and herself by her ' thoughtless, selfish and errant ways. The defendant was in fact working in Glaxo Laboratories as a Marketing Manager and after retirement, in short spells with Ruchi Food Products and very casually with Viscoti Marketing Services. The plaintiffs statement regarding salaries drawn and assets possessed by the defendant are not true. The maximum disposable income drawn by the defendant was Rs. 2,500/- per month towards the height of his career, i.e., at the time of his retirement from Glaxo. In reply to the notice dated 3-2-90, by her counsel, this defendant had written a reply dated 14-2-1990 narrating the many acts of omission and commission that the plaintiff had been guilty of. There was no rejoinder to the said reply.
6. The Family Court tried to bring about a settlement between the parties, but in vain. So, it framed the following issues :
(a) Whether the plaintiff is entitled to maintenance past, present and future as claimed in the suit?
(b) To what relief?
7. The plaintiff examined herself alone as P.W. 1 and the defendant also examined himself alone as D.W. 1. In its judgment, the Family Court has rightly observed that the question of ownership of the abovesaid Shenoy Nagar house is not relevant to the question of maintenance, which alone has to be decided in the present suit. Documents like Exs. B. 1 and A. 1 may show that there is a dispute regarding the said ownership and the wife has filed C. S. No. 499 of 1990 in this Court and 0. S. No. 6388 of 1989 on the file of the City Civil Court, Madras. But, those features are not relevant to the present dispute regarding maintenance, as the Family Court rightly held.
8. Regarding the maintenance question, the Family Court, after referring to Ex. B. 8 (dated 26-11-1985), a letter from the husband to the wife, asking the wife to come and live with him in his Shenoy Nagar house, observes that there is no question of the husband deserting the wife. It further refers to a passage in the evidence of P.W. 1 and concludes that the crux of the problem is, P.W. 1 is under the impression that D.W. 1 has sold the Shenoy Nagar House at a far higher price than what the sale deed Ex. B-2 dated 30-9-1988 shows, viz., Rs. 3.5 lakhs and that he has secreted the balance. The Court below also observes that the abovesaid O.S. No. 7325 of 1985 has been dismissed (on 21-7-1986, vide Ex. A. 3) on the undertaking given by the husband that he would not evict the wife without due process of Jaw and that such undertaking was given when the husband and wife were living in the said Shenoy Nagar House and that the accusation of desertion came only in 1990 under Exhibit B-3, the letter of the plaintiffs counsel to the defendant dated 3-2-1990. Then the Court also refers to some passage in D.W. Ps evidence and reiterates that there was no desertion by the husband. Then it observes that after the abovesaid Exhibit B-2 sale deed for a sum of Rs. 3,50,000/-, the husband also entered into an agreement Exhibit B-5 dated 1-10-1988, by which the husband has given Rs. 50,000/- out of the sale proceeds, as security deposit to be retained with the purchasers since the wife has not vacated the said house. The learned Judge says that pursuant to the undertaking given in O.S. No. 7325 of 1985, the abovesaid Ex. B. 5 agreement was entered into, by which the purchasers have to vacate the plaintiff by due process of law. Thereafter, the Family Court refers to the abovesaid writ proceedings, in which the above referred to compensation of Rs. 50,000/- was given to her by the Government, pursuant to the direction given by this Court since she was illegally detained in the mental hospital between 7-7-1989 to 17-7-1989 owing to the manipulations of the purchasers with the police. But, the Family Court concludes that the abovesaid situation had arisen not due to the conduct of the husband, but due to the execution of the abovesaid sale deed with reference to the abovesaid house owned by the husband. However, the Court below then proceeds to observe that inasmuch as the execution of the sale deed has provided the ground for the misfortune that has fallen on the wife, it has to be concluded that she is entitled to reside separately and claim maintenance from the husband due to a cause, justifying her living separately with the meaning of S. 18(2)(g) of ' the Hindu Adoptions and Maintenance Act, 1956 and that the husband may take appropriate proceedings to get reimbursed (as per law) against the purchasers, who are res-
ponsible for the abovesaid state of affairs. Then the Court below fixed the quantum of, maintenance at Rs. l,000/- per month, taking into account the relevant documentary and oral evidence and after concluding that the income of the husband would be Rs. 3,000/-per month while he is paying a rent of Rs. 1,200/- per month for another house at Basant Nagar, in which he lives.
9. Since the suit was filed by the plaintiff as an indigent person, the Family Court also directed the defendant to pay the Court fee with reference to the amount decreed, viz., Rs. 36,000/- and directed the wife to bear the remaining court fee payable on the disallowed portion of the plaintiff's claim of Rs. 3,60,000/-, viz., Rs. 3,24,000/-. So far as the future maintenance is concerned, the Court below has held that she is entitled to it at the same rate of Rs. 1,000/- per month till she dies.
10. In view of the very old age of the couple, we also tried to bring about a settlement between them by talking not only with them in camera, but also with their married daugthers who are also living in Madras with their children. No doubt we could not talk with the married son, since he is said to be a permanent resident of Poona. But, our efforts were in vain. Even the daughters could not persuade their parents for a settlement.
11. The plaintiff, as party in person, argues that the Court below erred in not granting at least Rs. 3,00,000/- as past maintenance as claimed by her in her evidence as P.W. 1, though not the entire sum of Rs. 3,60,000/- as claimed in the plaint, taking into account the several investments made by the husband as shown by Exs. B. 16 and B. 19 in banks and other investments as shown by Exs. B. 17 and B. 18 and the incomes derived therefrom.
11A. On the other hand, the learned Counsel for the respondent points out that the Court below erred in granting the maintenance, under S. 18(2)(g) of the Act, when there is no such plea in the plaint or any such claim made by the plaintiff while she was in the witness box or when she argued the case.
He also reiterates that the husband, as owner of the abovcsaid property, had every right to sell the same and it was the wife who invited the disaster by unreasonably refusing to live with the husband, even though the husband tried his best to pet suade her to conic and live with him. Further, in this connection he also relies on the decision in Subbc Gowda v. Honnamma, . He also argues that the Court below has erred in granting the maintenance at the rate of Rs. 1,000/- per month, without taking into account the relevant factors.
12. We have considered the rival submissions. The question mainly centers on the application of S. 18(2)(a) or S. 18(2)(g) of the Act, which are no doubt to be read with S. 18(1) thereof. The material portions of S. 18 run as follows:--
"(1) Subject to the provisions of this Section, a Hindu wife, whether remarried 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 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."
Section 18(2)(a) of the Act rather consists of two parts. While speaking of desertion, it says it may consist of either (I) the husband abandoning the wife without reasonable cause and without her consent or against her wish or (2) the husband wilfully neglecting the wife.
13. On the evidence on record, it is not possible to hold that the husband abandoned the wife without reasonable cause or without her consent or against her wish and thereby deserted the wife. To this extent, the Court below is right. But we find that the husband in this case would come under the second type of desertion stated above, that is, wilfully neglecting the wife. This aspect has not been considered by the Court below. In the present case, the husband is guilty of wilfully neglecting the wife to some extent inasmuch as he has exposed her to a proceeding at the instance of a third party by entering into an agreement with the purchasers of the abovesaid Shenoy Nagar house and directing them to get his wife evicted from the house. No doubt, the agreement provides only for eviction by lawful means but even that, the husband ought not to have done. When there was a. dispute between him and his wife regarding the ownership of the house, he should have himself taken the necessary steps to bring it to an end either by negotiation or by a decision of Court. He should not give licence to a third party to proceed against his wife without reference to himself.
14. The ancient Hindu Society has always placed the wife on a high pedestal. It is said that, "It is said, 'the house (building) is not the house'. The mistress of the house is said to be the house. A house without the lady of the house is worse than a dreary forest".
(Panchathantram -- Sl. 77 in Ch. Labda-pranasam).
14A. Manava Dharma Sastra or the Institutes of Manu with the Gloss of Kulluka, comprising the Indian system of duties, religious and civil, translated by Sri Willian Jones and collated with the Sanskrit Text by Grayes Chamney Hughten, Esq. Third Edition, Chatper 3 verses 55 to 60 read as follows:--
"55. Married women must be honoured and adorned by their fathers and brethren, by their husbands, and by the brethren of their husbnds, if they seek aboundant prosperity.
56. Where females are honoured there the deities are pleased; but where they are dishonoured, there, all religious acts become fruitless.
57. Where female gelations are made miserable, the family of him who makes them so, very soon wholly perishes; but, where they are not unhappy, the family always increases.
58. On whatever houses the women of a family, not being duly honoured, pronouce an imprecation, those houses, with all that belong to them, uterly perish, as if dustroyed by a sacrifiecc for the death of an enemy.
59. Let those women, therefore be continually supplied with ornaments, apparel and food at festivals and at jubilees, by men desirous of wealth.
60. In whatever family the Husband is contented with his wife, and the wife with her husband, in that house will fortune be assuredly permanent."
15. Incidentally we may also point out that the prophet of Islam has said, "The best among you are those who are kindest to their wives". Quran also says," ..... live with them (wives) on a footing of kindness and equity: (Even) if you take a dislike to them, it may be that you dislike a thing and God brings about through it a great deal of good" (Chapter 4: Verse 19 (part). The prophet has also said, speaking about the daughters generally, "If a man, of whom only daughters are born, brings them up properly, the same daughter will become a covering for him against hell."
16. Thus speak all scriptures in unison Law a wife is to be treted, but, how, in the present case, the respondent husband has treated his wife? The parties, viz., the purchasers happened to be unscrupulous and resorted to methods not approved by law which lead to a very grave injury to her mental and physical health. There cannot be a graver act of cruelty than to brand a normal person with insanity and confine her to a mental asylum. The husband was indirectly responsible for it and he cannot escape the consequences by claiming that he made all arrangements to provide her with better facilities inside the asylum and got her released a few days later. Undoubtely the incident has caused a deep wound in her mind which may, if at all, take a very long time to heal. Hence the case will fall under Section 18(2)(a) of the Act.
17. Here, we may also point out that the Court below is not right in holding after referring to Ex. B.10 (dated 18-12-1985) which come immediately after the above referred to Ex. B8 letter of the husband), that the wife was not willing to live with the husband. No doubt, the learned Judge has quoted the following passage from Ex. B10:--
"There is no union of thought, harmony or purpose or identity of interest or a sincere comradeship."
and has held that the cumulative effect of Ex. B10 is clear and cogent that the wife was not willing to live with the husband. But, we are of the opinion that the other passages found in Ex. B10 will speak high of the wife and may give an indication how actually the husband was behaving at the time when the said letter was written in 1985: The said passages read as follows:--
"..... There are noble and heroic souls who find pleasure in giving without any return. They arc real benefactaor of humanity, whatever be the sphere of their activity. The head of the family obtains certain benefits and advantages. Therefore in return for the same he has to make a corresponding contribution for the benefit of other according to his capacity and the principle of give and take applies to one and all as the fundamental law of nature. Thus no one can make onself happy by depriving others of their happiness ..... Tahere are some extreme (persons) who are clever and capable of doing anything for their own benefit and to the needy one shut their eyes and manipulate various ways to take things without giving anything in return .....
For him who has no sense control over his senses is not possible for him to distinguish good and bad and is indiscipined and there is no hope. They get rivetted to the objects of pleasure and go on exchanging endlessly to different objects till they are physically exhausted ..... Though the man may strive and be ever discerning yet the senses carry him of and his mind by force. Sense control and and self discipline are not merely matters of intelligence and reason, but the work of will and emotien. Only after driving away the senses from their respective pleasures involving objects mind can be steady. The general principle is to give up extreme and counsel to walk in the middle of the road. It is opposed to ascetism and equally to over indulgence. It wants us to strike a balance between the two. You have (to) control your pleasant living of pleasure. (Otherwise) There won't be happiness. Your way of pleasant and comfortable life is not pleasing to the law of nature."
At any rate, it cannot be concluded, in the light of Ex. B10 that the wife was not willing to live with husband, unreasonably or without just cause. In the light of Ex. B10, the offer made by husband in Ex. B8 cannot be taken as genuine and sincere.
18. It can also be said that the Court below has not properly appreciated Ex. B3 dated 3-2-1990, the suit notice given by the wife's Counsel to the husband and Ex. B4 reply dated 14-2-1990 by the husband. In Ex. B3 it is stated as follows:--
"My client states that she has been living alone till 7-7-1989 in the matrimonial home. You have deserted her."
After referring to this pasagc, the Court below Says that the exact time at which the desertion took place according to the wife has not been Set out in Ex. B3. We do not think that there is any warrant for this comment by the family court since it is seen from the evidence that on 7-7-1989 only the police illegally took away the wife from the abovesaid Shenoy Nagar house and put her in the mental hospital. In this connection, the evidence of P.W. 1 is as follows:--
"On 30-9-1988 my husband sold the house under a registered sale deed to one Dr. Salim and his wife. The purchasers colluded with the Police and under dubious method they dispossessed me unlawfully in July 1989(7-7-1989). Before that they gave a complaint and the Police took me to Kilpauk and I was under detention on 8-7-1989. Till 17-7-19891 was there."
Further, in F,x. B 3 it is stated as follows:--
"For quite some time you have been very irresponsible towards my client. My client states that you would disappear for days together and not take care of your family at all. My client states that she has been living alone till 7-7-1989 .... My client states that all the three children were brought up only by my client and you did not bother about her."
In the reply Ex. 114, the husband has only stated as follows:
"Your Client's statements that for quite sometime I have been irresponsible towards her, that I would disappear for days together and not take care of her are all totally false. These charges had already been levelled against me in her suits Nos. 7325/85, 6388/89 filed in the City Civil Courts and in her W.P. No. 15671/89 pending before the High Court, Madras. In my counters to these, I have already effectively refuted all these baseless and false charges and I reiterate the same herein also."
Thus the husband did not choose to specifically controvert in Ex. B.4 itself those specific charges made in Ex. B. 3. It is also not known how he has refuted those charges in the counters in the other proceedings referred to in the abovesaid passage in Ex. B. 4. That apart, the abovesaid allegation that all the three children were brought up only by the wife does not seem to have been denied.
Further, in Ex B.4, the husband himself admits that he came back to Madras in 1976 after his retirment and the wife who was in Delhi rushed back to rejoin him. The relevant passage in Ex. B. 4 is as follows:
"Only when I came back to Madras in 1976 after my retirement, she rushed back to rejoin me."
Further, the husband in Ex. B4 says thus: -
"Finally she got involved in some police action and was admitted in the Mental Hospital."
This, he say, as if he knew nothing about what has been done by the purchasers contrary to the terms of Ex. B. 5 and as if without reference to him, the purchasers have acted in that way. How much the plaintiff has been wounded becuse of the abovesaid illegal detention in the Mental Hospital may also be seen from the following passage in her evidence as P.W. 1:--
"It is not correct to say that I have stayed away from my husband.
Ques:-- Aru you prepared to stay with him now?
Ans:-- No. No. I have been landed in mental hospital. Hence I am not willing to stay with my husband."
S, there will be no difficulty in holding that the case will come under the abovesaid second type of desertion spoken to in Section 18(2)(a) of the Act.
19. Even otherwise, the case would certainly fall under clause (g) of Section 18(2) which provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance, if there is any cause justifying her living separately. What is justifying cause will depend on the facts and circumstances of the case. The question has been considered by Mr. Justice Deshpande in Balbir Singh v. Shanti Devi, ILR 1970 1 Delhi 21 (Reversed in ). The case arose under Section 9(1) of the Hindu Marriage Act relating to restitution of conjugal rights. The said section uses the expression "reasonable excuse". According to that Section, when a spouse has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights while considering the meaning of the expression "reasonable excuse", the learned Judge referred to Section 23(1)(a) of that Act and observed:--
"Section 23(1)(a) of the Act further requires that the Court should be satisfied that the petitioner is not in any way taking advantage of his own wrong before granting any matrimonial relief. In other words, if the conduct of the petitioner itself is such as to give the respondent a reasonable excuse for withdrawal from his society, then the petitioner would be disentitled to the grant of matrimonial relief. This is another consideration showing that the expression "without reasonable excuse" can mean something less than a matrimonial offence or a ground sufficient to obtain a judicial separation, nullity of marriage or divorce. It is, necessary, however, to show that the conduct of the petitioner is in some way blameworthy before it can be held that it constitutes reasonable excuse justifying the withdrawal of the respondent from the petitioner's society. A mere honest difference of opinion between the parties for which the petitioner cannot be blamed would not constitute "reasonable excuse" within the meaning of Section 9(1). The conduct of the petitioner constituting such reasonable excuse would lie somewhere between these two extremes. What conduct would amount to such "reasonable excuse" would depend upon the facts of particular case."
In that context, the learned Judge referred to Section 18(2)(a) and (g) of the Hindu Adoption and Maintenance Act and said:--
"The related provising contained in Section 18(2)(a) and (g) of the Hindu Adoptions and Maintenance Act, 1956, entitles a Hindu wife to live separately from her husband without forfeiting her claim to maintenance, inter alia, if the husband is guilty of desertion without reasonable cause or if there is any other cause justifying her living separately. Here again, the wife would be entitled to a separate maintenance from her husband by proving cither desertion without reasonable cause on his part or more generally by proving "any other cause". The expression "any other cause" accords in its generality with the expressions "reasonable excuse", "reasonable cause" and "conduct of the parties" considered above. Alt of these expressions are wide enough to include such conduct of the husband as whould be less serious than a matrimonial offence or a ground to obtain judicial separation, nullity of marriage or divorce and yet would be such as to justify the wile in living separately from her husband without verifying her claim to maintenance."
20. In Section 125(3) of the Code of Criminal Procedure 1973, the second proviso uses the expression 'just ground". That" section relates to grant of maintenance to a wife. In the previous code of criminal Procedure, the corresponding, section was 488. In a case arising under that section Pandrang Rao, J. in Sundarammal v. Palaniandi Mudali, AIR 1940 Mad 292 : (1940 (41) Cri LJ 532 held that the fact that the wife really has reasonable apprehension of physical ill-treatment is a sufficient or "just" ground for her refusal to accept the offer of her husband to take her back and maintain her. In M. Ponnambalam v. Saraswathi, it was held that it was the responsibility of the husband to protect his wife from the unpleasantness and cruel treatment of his relatives. Adopting the reasoning in the above case, the Orissa High Court held in Kashinath Sahu v. Smt. Devi, AIR 1971 Ori 295 that under Section 19(1)(b) of the Hindu Adoption and Maintenance Act, it is no answer to a charge of cruelly levelled by the wife to say that it was not the husband himself but his mother who had treated her with cruelty.
21. In a case arising under Section 125 of the Code of Criminal Procedure, the Supreme Court held in Siramohmedkhan v. Hafinunnisa Yasirikhan, AIR 1981 SC 1972 : (1981 Cri LJ 1430) that if a husband is impotent and is unable to discharge bis matrimonial, obligations, it would amount to legal and mental cruelty, which would undoubtedly be a just ground contemplated by the second proviso to Sec. 125(3). In that context, the court said:
"16. There is however a very formidable circumstance which seems to have been completely overlooked by later depisions while following the previous decisions of the Madras High Court. Although the second proviso to sub-section (3) of Section 125 of the Code of 1973, which was also a proviso to the old Section 488, clearly provided that it is incumbent on the Magistrate to consider the grounds of refusal and to make an order of maintenance if he was satisfied that there was just ground for refusing to live with the husband, yet this salutary provision which was introduced with the clear object of arming the wife with cause of action for refsuing to live with the husband as the one which we have in the present case, no legal effect to the legislative will, intent appears to have been given by the aforesaid decisions.
17. Another important event which happened in 1949 also seems to have been completely ignored by the recent decisions while following the previous decisions of High Cours. It would appear that by the Code of Criminall Procedure (Amendment) Act No. 9 of 1949 an additional provision was added after the proviso which may be extracted thus: --
"If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him."
18. The object of introducing this provision was clearly to widen the scope and ambit of the term 'just ground' mentioned in the proviso. This provision is not exhaustive but purely illustrative and self explanatory and takes within its fold not only the two instances mentioned there in but other circumstances also of a like or similar nature which may be regarded by the Magistrate as a just ground by the wife for refusing to live with her husband under the Code of 1973. This provision has been incorporated as Explanation to the second proviso to sub-section (3) of Section 125.
19. The decisions of the High Courts given prior to the Amendment of 1949 would no longer be good law after the introduction of the Amendment which gives, as it were, a completely new complexion to the intendment and colour of the second proviso to Section 488 (Now Explanation to the second proviso to subjection (3) of Section 125) and widens its horizon. It is, therefore, needless to refer to these decisions or to subsequent decisions which have followed the previous cases.
20. A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just grounds for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision and also other instance as of Physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband's parents or relations, such aprehension also would be manifestly a reasonable justification for the wife's refusal to live with her husband. Instance of this nature may be multiplied but we have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending Provision which is, as already indicated, by no means exhaustive."
22. In Subbegowda v. Honnamma, , it is held that if the wife's claim for maintenance clearly falls under any of the clauses (a) to (f) of Section 18(2), clause (g) thereof should not be applied. But, it can be sustained under clause (g), even on a ground covered by one or other clauses (a) to (f) substantially but not fully. The relevant passages in the judgment read thus:--
"The wife's claim for maintenance can be sustained under clause (g) even on a ground covered by one or the other clauses substantially but not fully. We should not take a technical view in construing this provision. In this connection the following observations of the learned Author Raghava Chariar in his "Hindu Law" Vol II (7th Edition) at pages 1204 and 1205 may be noted:--
"Under this clause are sought to be brought in all other grounds for lawful spearate living which cannot strictly be brought under any other previous clauses. What these clauses are and how far they will justify the court in awarding separate maintenance against the husband are matters left to the Judicial discretion of the court to be exercised in accordance with the principles of justice and equity, principles "which cannot be defined by rules of thumb or well established precepts" ..... The expression any other cause justifying her living separately; would, it is conceived takes in a case where the wife's residence in the husband's home is rendered miserable by reason of the existence of his relations like bis mother or sister, or others, between whom and the wife there has been no love lost, and for reasons easily imaginable the wife is justified in seeking to live away from such a home. This expression will also comprehend a case where the husband by his addiction to drugs and drinks often indulges in acts which no decent woman would put up with. Such and similar instances justifying the wife living away from the husband and asking for separate maintenance can easily be conceived. The Legislature deliberately uses this elastic expression so that there may be a large margin of judicial discretion vested in the court which may be moulded to suit the circumstances of any particular case."
18. It is true as already stated, she has not specifically pleaded for a consideration of her claim under clause (g) Evidently no issue has been framed. But the courts below have allowed her claim under that clause relying on the evidence available. Her claim was that she was entitled to live separately and claim maintenance from the defendant, Merely because she had failed to strictly prove the specific grounds urged by her, she cannot be denied relief, if, otherwise, in law, her claim can be allowed on the basis of the evidence let in by the parties."
23. The question in this case is whether the conduct of the husband in entering into an agreement with the purchasers of the house directing them to get his wife evicted from the house would amount to "a cause justifying her living separate". We have already said that the husband ought not to have exposed his wife to an action by third parties. His thoughtless action has inflicted a deep, wound in her. That is a justifying cause for the wife to live separately from him. She has also expressed before this court an apprehension that she would be physically harmed if she lives with her husband. Hence, on the facts of this case, we hold that the wife is entitled to live separately and claim maintenance from her husband.
24. Regarding quantum of maintenance we see no justification at all for interfering with the finding of the court below. As per Ex. B. 16 dated 12-11-1992, the husband has a deposit of more than one lakh of rupees in the Bank of Maharashtra and as per Ex. B. 19 dated 12-11-1992 he has a deposit of Rs. 16,242 in Canara Bank. Further, he has made an investment to the extent of Rs.40,000/- in the State Bank of India Mutual Fund. He has also made investment under Ex. B. 18 for another sum of Rs. 50,000/- in the same State Bank of India Mutual Fund. Though he earlier alleged that he had contracted loans, D.W. 1, admitted that he had discharged those liabilities. In the above circumstances, there is no good reason to interfere with the finding of the court below that the evidence available shows that the husband's income would be Rs. 3,000/- per month and even though the husband pays a sum of Rs. 1,200/- per month by way of rent for the house in which he is presently living, out of the remaining amount he can easily pay Rs. 1,000/- to the wife in as much as the spouses were earlier living with all comforts. No doubt, there is no scope for enhancing the above said quantum of Rs. 1,000/- per month as claimed by the wife.
25. Since the suit was filed as an indigent person, the court below has directed the wife to pay the court fee for the abovesaid sum of Rs. 3,24,000/- which represents the disallowed portion of the claim for past maintenance. Thus the plaintiffd has to pay court fee, as per the decree of the Family Court, Rs.33,300/-to the Government Likewise, she has to be directed in this appeal also to pay a similar sum as court fee, no doubt deducing the sum of Rs. 20/- paid by her, as court fee, treating originally this appeal as civil miscellaneous appeal. By an earlier order, this court has allowed her to convert the civil miscellaneous appeal as a regular first appeal and has also allowed her to prefer the said appeal as an indigent person. Under Order 33, Rules 10 and 11, C.P.C. We ahve to direct her to pay court fee on the disallowed portion of her claim. It is held in Chandrareka v. Secretary of State, (1981) ILR 14 Mad 163, Secretary of State v. Thripurasunda Rammal, AIR 1926 Mad 474 and Srinivasa Ayyar v. Lakshmi Ammal, AIR 1928 Mad 216 that the plaintiff is bound to pay court fee for the disallowed part of the claim and it is not open to the court to direct the defendant to pay court fee exceeding the amount payable on that portion of the plaintiff's claim which is allowed. But in the present case the court fee payable would consume her maintenance amount for three years. In view of the peculiar facts of the case and the pitiable condition of the plaintiff we would earnestly recommend that the State Government should consider waiver or remission of the court fee payable by her both on the plaint and the memorandum of appeal, particularly when it has not been proved that she has got any other assets or income, and she is already aged above 63 years.
26. In the result, both the appeals are dismissed. There will be no order as to costs in A.S. No. 800 of 1993. The appellant in A.S. No. 841 of 1993 shall pay sum of Rs. 2,000/-by way of costs to the respondent in that appeal.
27. Appeal dismissed.