Kerala High Court
Thankammu, W/O. Pallathu Kochunni vs Kochunni, S/O. Pallath Ayyappan on 19 December, 2002
Author: Pius C. Kuriakose
Bench: K.A. Abdul Gafoor, Pius C. Kuriakose
JUDGMENT Pius C. Kuriakose, J.
1. Plaintiff-wife, who is aggrieved by the dismissal of the suit filed by her before the Family Court, Thrissur, seeking separate maintenance from her husband, is the appellant. She alleged in the suit that she and the respondent are Hindus who got married as per the customary rites and that they lived together as husband and wife for a few years in the respondent's house. According to her, a son and a daughter were born to them out of that wedlock. The son died even as he was a baby. The daughter, now aged 38, who is married is living with her husband. She alleged further that the respondent, presently employed as a mason at Wynad, married another woman called Kalyani even during the subsistence of his marriage with the appellant. It is with the aforementioned Kalyani that the respondent is presently living and out of his relationship with Kalyani, respondent is having children. Appellant sought separate maintenance on the reason that she is presently without any avocation or independent source of income. According to her, hitherto she had been taking income from the plaint schedule properties belonging to the respondent and had been maintaining herself also out of the occasional payments which the respondent used to give her towards her maintenance. The suit was instituted on the basis that since one year prior to the institution of the suit, absolutely no amount had been paid by the respondent towards her maintenance. Separate maintenance is claimed on the basis that the respondent is an able bodied person doing masonry work and getting a daily income of Rs. 75/-, apart from the income from the properties allegedly owned by him at Wynad and also on the basis that she who is presently leading a solitary life is unable to maintain herself and that maintenance has not been paid in spite of several demands, personally as well as through relatives. Her claim is for separate monthly maintenance of Rs. 500/-.
2. Resisting the suit stiffly, the respondent-husband denied the marriage between him and the appellant. He denied not only the marriage between him and the appellant but also birth of children out of the wedlock. According to him, the appellant had been in love with his brother and she had been living with him. Respondent was married to Kalyani with him he is presently living as husband and wife. He denied the liability to maintain the appellant and denied her claim that she had been so far maintaining herself out of the income from the plaint schedule properties and also through occasional payments given by him. According to him, the plaint schedule property was allotted to him in the family partition only in 1988 and this aspect reveals the fallacy of the appellant's case that she was in possession of the plaint schedule property belonging to her husband since last 30 years and taking the usufructs therefrom. He further contended that he is sick for the last 20 years and is undergoing treatment. He is without any work and is having no income. He is depending solely on his wife Kalyani and also on his children for his maintenance. As for the appellant, she has her own landed properties and is deriving income by doing work.
3. Reiterating his contention regarding denial of the relationship between him and the appellant, the respondent filed an additional written statement specifically contending that he has not married the appellant on the date mentioned in the plaint.
4. After unsuccessful counselling procedure, the learned Judge of the Family Court formulated inter alia the following issues:-
"1. Is the plaintiff, the wife of the defendant?
2. To what maintenance is the plaintiff entitled.
3. Reliefs and costs."
5. The evidence on the side of the plaintiff consisted of documents Exts. A1 to A3 and testimonies of witnesses PWs. 1 to 4. On the side of the defendant, the same consisted of Ext. B1 and the defendant's own evidence as DW. 1.
6. On appreciation of the evidence on record, the learned Family Court Judge did find that the respondent had married the appellant in accordance with the rites and rituals of the Hindu religion to which they belong. The learned Judge also found that in law the appellant was entitled to claim maintenance from the respondent since she had justification for living separately, by virtue of the provisions of Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act'). But curiously rather, the learned Judge found that the appellant's claim for maintenance, coming as it was after the lapse of several decades since she and the respondent started living separately, was not bona fide and accordingly dismissed the suit.
7. Heard Adv. Sri. K.G. Balasubramanian for the appellant and Sri. P.V. Chandramohan for the respondent. Perused the records.
8. According to Mr. Balasubramanian, the concept of bona fides is alien to the law relating to grant of maintenance to Hindu wives and for that mater wives of any other community. He contended that the appellant had not claimed separate maintenance form her husband for more than four decades. But, according to him, the fact that she did not claim any maintenance all these years either for herself or even for the daughter who is already seen off in marriage will not disentitle her to claim maintenance now since the liability to maintain the appellant was a statutory burden of the respondent-husband. He submitted that the learned Family Court Judge seems to have been more obsessed with the appellant's case pertaining to the plaint schedule property and was not at all happy with the wife, legitimate though she may be, who sought to attach the immovable properties belonging to her husband during the evening period of his life. This, according to the learned counsel, is the only reason for the learned Judge for importing the concept of bona fides into a cause for separate maintenance by the wife under statutory provisions.
9. Mr. Chandramohan tried to assail the finding by the court below regarding the existence of a marriage between the appellant and the respondent, notwithstanding the non-filing of a memorandum of cross objections. According to him, Order XLI Rule 22 C.P.C. does enable the respondent to assail the finding even without filing a memorandum of cross objection since notwithstanding the unfavourable decision on issue No. 1 regarding the marital relationship, the decree in the suit was in his favour. But the learned counsel raised more serious arguments for supporting the Family Court's judgment by which that court dismissed the suit for maintenance on the ground of bona fides of the claim.
10. We have examined the judgment of the Family Court meticulously and scanned he evidence on record in full. We have absolutely no difficulty to agree with the Family Court Judge on his findings entered on issue No. 1 which pertains to the matrimonial bond between the appellant and the respondent. In fact, Mr. Chandramohan towards the end of his submissions conceded that the learned Family Court Judge's finding on the matrimony between the appellant and the respondent is supported by the evidence on record. He would only submit that Kalyani also has been married by the respondent. In this appeal we are not concerned about the legality or otherwise of the relationship between Kalyani and the respondent. We will only observe that in as much as there is no case or evidence to the effect that the parties belonged to a community which recognises polygamy, the appellant alone will remain as the lawfully wedded wife of the respondent.
11. Mr. Chandramohan tried to meet Mr. Balasubramanian's arguments pertaining to the concept of bona fides in the context of a Hindu husband's liability to maintain his wife by inviting our attention to Section 23(1) of the Act. Section 23(1) reads as follows:-
"23. Amount of maintenance.--(1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in Sub-section (2) or Sub-section (3), as the case may be, so far as they are applicable."
The considerations set out in Sub-section (2) are the following:-
"(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act."
The considerations set out in Sub-section (3) expressly pertain to the quantum of maintenance. According to learned counsel, whether any amount should be awarded as maintenance is a matter which has been left by the statute to the discretion of the court. Discretion gives a long rope to the court even to dismiss a claim for maintenance altogether, if the conduct of a party seeking maintenance is found to be not bona fide, learned counsel argued.
12. We are unable to accept the argument of the learned counsel for the respondent. Discretion in legal parlance always means judicial discretion to be exercised on sound judicial principles. A close and careful reading of Section 23(2) of the Act will show that bona fides of the claim or delay in the matter of lodging the claim can never be a reason for a court to turn down a plea for maintenance. As observed by us elsewhere, in the case on hand, the learned Judge did find that the appellant was justified in living separately and seeking maintenance from her husband. According to us, we have no hesitation to conclude that the approach of the learned Judge in turning down the claim for maintenance was neither sound nor just. On going through the pleadings and the counter-evidence adduced by DW.1, what we find is that as regards the quantum of maintenance, the respondent did not have any specific defence. He was more concerned about his denial of relationship with the appellant and about the establishment of the legality of his relationship with Kalyani. We are at a loss to understand why the learned Judge should feel displeased when a wife who is not being maintained by her husband seeks attachment of the only item of property belonging to the husband when she finds that the said item is going to be disposed of by him. The learned Judge seems to have been enthusiastic to repel the appellant's case that she was in possession of the plaint schedule property and taking the usufructs therefrom. Of course, the learned Judge is right in saying that the appellant cannot be in possession of a property upon which even the respondent got exclusive title only in 1988. But obviously the respondent was in possession even earlier as a co-owner. The respondent is far away in Wynad. The appellant is the lawfully wedded wife who is in physical control over the property and she was certainly justified in contending that she was having possession. The possession could not have been possession of an exclusive owner. It was the physical possession of somebody who at least was an agent of a co-owner.
13. We enquired of counsel on either side as to what they felt will be the reasonable amount to be given by way of monthly maintenance to the appellant. According to Mr. Balasubramanian, the claim was only at the rate of Rs. 500/- per mensem, a most reasonable figure when viewed through the perspective of the recent amendment introduced to Section 12 of the Code of Criminal Procedure. According to Mr. Chandramohan, the respondent is a very old and sickly person who is dependent on his "wife" Kalyani and children for his own maintenance and therefore, we may not grant any amount by way of maintenance. According to him, the court below did not order attachment of the property sought for by the appellant and therefore the respondent has disposed of the same and he is presently having no property at all in his name. Considering this argument, Mr. Balasubramanyan contended that the sale of the plaint schedule property, may as it was during the pendency of an application for attachment before judgment was not a bona fide one and the appellant's claim for maintenance may be made a charge on the said property. In this context he invited our attention to Sections 27 and 28 of the Act. Mr. Chandramohan had no effective answer to the submission of Mr. Balasubramanyan that the purchaser was having notice of the appellant's claim for maintenance.
14. Taking all relevant aspects into consideration, we are of the opinion that a sum of Rs. 200/- per month can be awarded as maintenance to the appellant from the date of suit.
15. The result of the above discussion is that the appeal succeeds, the judgment and decree passed by the court below are set aside and the suit is decreed in part. It is found that the appellant-plaintiff is entitled for monthly maintenance from the respondent at the rate of Rs. 200/- per mensem from the date of suit. The amount of maintenance due to the appellant-plaintiff under the decree will be a charge on the plaint schedule property which is reported to be sold during the pendency of the suit.
The appeal is allowed as above. The parties shall suffer their respective costs throughout.