Andhra HC (Pre-Telangana)
Velieneni Gopala Rao vs Velineni Pitchamma on 1 April, 2005
Equivalent citations: 2005(3)ALD847
JUDGMENT P.S. Narayana, J.
1. Heard Sri B. Adinarayana Rao, Counsel representing the appellant and Sri K. Harinath, Counsel representing the respondent.
2. The second appeal was admitted on 17-4-1997 and the following substantial question of law "Whether enhancement of maintenance is permissible solely on the ground of raise in cost of living in the absence of any proof of changed circumstances regarding the means of the defendant" had been framed.
3. Velineni Gopala Rao, 1st defendant in the suit O.S. No. 450/87 on the file of Munsif Magistrate, Ponnur and the 1st respondent in the Appeal A.S. No. 32/94 on the file of Subordinate Judge, Bapatla, the husband, aggrieved by the reversing judgment and decree wherein some enhancement of maintenance had been granted to the plaintiff/appellant/wife Velineni Pitchamma, had preferred this second appeal. Submissions were made on the substantial question of law referred to supra in the light of the evidence available on record. The respondent/plaintiff filed the suit O.S. No. 450/87 on the file of Munsif Magistrate, Ponnur, pleading as hereunder:
The plaintiff is the wife of the 1st defendant and defendants 1 to 3 are brothers. The 4th defendant is the son of the 2nd defendant. All of them are Joint Hindu family members. 2nd defendant is the manager of the joint family. The plaintiff and the 1st defendant had a son born to them on 28.2.1964 who died on 29.2.1964. The plaintiff succeeded the share of her deceased son in the joint family properties in A, B and C schedule and she was in joint possession and enjoyment. The 1st defendant was addicted to vices and developed illicit intimacy with other ladies and began to harass the plaintiff. The other defendants wanted to grab the share of the plaintiff. They instigated the 1st defendant and the 1st defendant mercilessly beat the plaintiff about 141/2 years ago and took away her gold ornaments. So she came to her parents house and was residing there and the mediations proved futile. The exchange of notices took place. The plaintiff filed O.S. No. 39/79 on the file of Sub-Court, Bapatla claiming maintenance at the rate of Rs. 250/- per month with a charged over the plaint schedule properties. However, Rs. 75/-was granted as future maintenance. The plaintiff preferred A.S. No. 54/84 in Guntur District Court and the maintenance was modified to Rs. 175/- per month from the date of the suit. The past maintenance and the charge over l/3rd share of the 1st defendant in the joint family properties was confirmed. It was stated that since 1978 there was enormous rise in the prices and the prices doubled. The defendant is getting an income of Rs. 2,500/- per acre as against Rs. 1,000/- in 1978. So the plaintiff requires at least Rs. 600/- per month and she is entitled for charge over the suit properties. So the suit is filed to alter the maintenance from Rs. 175/- per month to Rs. 600/- per month and to create the charge over the suit properties.
4. The appellant herein, 1st defendant/ husband filed a written statement with the following averments:
Defendants 1 to 3 already got partitioned in 1968 and they are living separately. They are paying the cist separately and obtained the pass books separately. No son was born to the 1st defendant and the plaintiff and the same was covered under the judgment in O.S. No. 39 of 1979 on the file of Sub-Court, Bapatla. The ill-treatment and vices and taking away of jewellery had been denied. It was also averred that the 1st defendant and the plaintiff brought up the 4th defendant to take him in adoption. The 1st defendant conveyed Acs.3-00 of wet land in favour of the 4th defendant with the knowledge and consent of the plaintiff in Item No. 1 of the B Schedule which fell to the share of the 1st defendant. The 1st defendant sold Ac.1-00 of wet land out of Acs.2-52 cents in Item No. 1 of the plaint schedule to discharge the decree debt in O.S.No. 30/79 when he was got arrested. The 1st defendant owns only Acs. 1-512 cents of land in Item No. 1, 0-60 cents in Item No. 3, 0-03 cents in Item No. 5 and 20 yards spread over with residential house of A Schedule. The 1st defendant has Ac. 1-20 cents in C Schedule. The land is saline and it does not yield more than 10 to 12 bags of paddy and no second crop was grown. The income is not sufficient for the bare maintenance of the 1st defendant and he is aged more than 70 years. The plaintiff is hale and healthy and earns Rs. 20/- per day. The defendants 2 to 4 are necessary parties and the properties are not liable for charge. Defendants 2 to 4 had adopted the written statement of the 1st defendant.
5. On the strength of the respective pleadings of the parties, the following Issues were settled by the Court of first instance:
1. Whether the plaintiff is entitled to maintenance by way of a charge on the schedule mentioned properties ?
2. Whether the suit is bad for misjoinder of parties ?
3. To what relief ?
6. On behalf of the respondent/ plaintiff, PW-1 and PW-2 were examined and Ex.A-1 was marked. On behalf of the defendants, DW-1 and DW-2 were examined and Ex.X-1 was marked. The Court of first instance on appreciation of the oral and documentary evidence ultimately dismissed the suit with costs and aggrieved by the same, the wife preferred Appeal A.S.No. 32/94 on the file of Subordinate Judge, Bapatla. The learned Subordinate Judge after framing the Point for consideration i.e., "Whether there are grounds to interfere with the decree and judgment of the lower Court? and discussing all the aspects commencing from Para 11 to Para 15 ultimately allowed the appeal setting aside the judgment and decree of the Court of first instance and granting enhanced maintenance at the rate of Rs. 350/- per month from the date of suit with a direction that there shall be a charge on the plaint A, B and C scheduled properties, but however without costs. Aggrieved by the same, the husband preferred the present second appeal impleading the wife alone as the respondent and showing that others are not necessary parties in the present second appeal.
7. Ex.A-1 is a certified copy of the judgment in A.S. No. 54/84 wherein monthly maintenance of Rs. 175/- per month had been granted in favour of the wife. It is not in controversy that the plaintiff/PW-1 filed O.S. No. 39/79 for maintenance against the appellant/1st defendant which was carried in appeal as A.S. No. 54/84 on the file of District Court, Guntur. After the disposal of the aforesaid A.S.No. 54/84 on 24-6-1986, the Court of first instance dismissed the suit as a result of which the appeal had been preferred. Ex.A-1, certified copy of the judgment in A.S. No. 54/84, had been discussed in detail. Apart from this aspect of the matter, as can be seen from the substantial question of law which had been framed, the question appears to be a question of fact. However, it may be appropriate to have a look at the relevant findings in this regard recorded by the appellate Court:
"The defendants admitted with regard to yielding of both paddy and black gram and the income thereon. Admittedly an amount of Rs. 175/- was granted considering the prices, facts and circumstances prevailed in that year. It is an admitted fact that the prices as well as the income was raised from 1979 to 87 i.e., from the date of the earlier decree to the present suit. According to the evidence of the plaintiff, she is not having any property to maintain herself. DW-1 himself admitted that the yield per acre is not more than Rs. 2,600/-. I find in regard to temple cases in those years a fair rent of about 20 bags per acre is fixed that is known which the landlord gets without investing their man power. Considering the evidence adduced by both the sides coupled with the admissions of DW-1, I feel that the net income of the defendant will be estimated to Rs. 2,500/-per acre towards paddy per annum and therefore, it is proper that the wife should get maintenance of l/3rd of the income of the husband when there are no children. Even Ex.X-1 considerations the 1st defendant still owns three acres of land Income per acre for one year is Rs. 2500-00 as paddy For three acres Rs. 2500 x 3 = Rs. 7500-00 Income per acre for one bag black gram Rs. 600-00 Three bags of black gram per year Rs. 600 x 3 = Rs. 1800 For three years Rs. 1800 x 3 = Rs. 5400-00 Total income on the paddy for three acres = Rs. 7500-00 Total income on the black gram for 3 acres = Rs. 5400-00 Total income per year = Rs. 12,900-00 Considering all the above facts and circumstances taking into consideration I am of the view that an amount of Rs. 350/- is enhanced from Rs. 175/-."
8. The main ground of attack is that mere ground of rise of prices by itself may not be a ground unless there are changed circumstances relating to the means of the appellant/1st defendant. The appellate Court also had recorded findings as hereunder:
".......According the plaintiff, the defendant is having Acs.7.00. But even considering the observations of the lower Court that the defendant is having 2 or 3 acres of land, the maintenance granted to the plaintiff is less when compared to the increase of prices and income as admitted by the defendant in his evidence. Even if the cost of agricultural operation is increased, it is evidenced by D.Ws.1 and 2 the unchallenged evidence of P.Ws.1 and 3 with regard to increasing of prices of paddy proportionately. Considering the evidence adduced by both sides, I have no hesitation the hold that the more rise in prices will entitle the plaintiff to climb enhanced maintenance. The lower Court did not give any date as to why the plaintiff is not entitled for the enhanced maintenance. When the adduced unchallenged evidence coupled with the defendants themselves admitted that the prices of paddy increased from 1975 to 1986. On perusal of the observation of the lower Court, I am of the view that the lower Court erred while coming to such a conclusion without considering the admitted and unchallenged evidence of both parties. For all the discussion, the plaintiff successively proved her case and as such she is entitled for maintenance."
It is not in controversy that the respondent herein/wife prayed for the relief of enhanced maintenance from Rs. 175/- to Rs. 600/- by making charge over the properties referred to supra and the appellate Court allowed the appeal enhancing the maintenance only to Rs. 350/- and reasons recorded by the appellate Court had been referred to supra. The said reasons recorded by the appellate Court can neither be said to be either perverse or based on misappreciation of the evidence available on record.
9. The Hindu Adoptions and Maintenance Act 1956, Act 78 of 1956, is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. In Jayanti Subbaiah v. Alamelu, 1904 (27) Mad. 45, it was held that the maintenance of a wife by her husband is a matter of personal obligation which attaches from the moment of marriage. [See also Manikyam v. Venkayamma, AIR 1957 A.P. 710, Chandramma v. Mariyam Venkatreddy, AIR 1958 AP 396]. It is not in controversy that even under old Hindu Law, Courts had power to alter maintenance decrees. The relevant provisions of Hindu Adoptions and Maintenance Act 1956 are Sections 3(b), 23 and 25 of the said Act. Section 3(b) defining 'maintenance' reads as hereunder:
"maintenance" includes--
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage;
Section 23 dealing with amount of maintenance reads as hereunder:
(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.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to--
(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 earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to--
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provisions, if any, made under a will of the deceased in respect of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source;
(g) the number of dependants entitled to maintenance under this Act.
Section 25 of the Act aforesaid deals with amount of maintenance may be altered on change of circumstances, and the said provision reads:
"The amount of maintenance, whether fixed by a decree of Court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration".
The change of circumstances and the enhanced maintenance and the principles relating thereto had been well dealt with in the under-noted decisions : Chimalakonda v. Chimalakonda, , Veeramma v. Seethamma, AIR 1969 AP 815, Vidyadhar Rao v. Lalita Devamma, , Kondamma v. Seethamma, , Sashi Ammal v. Thaiyu Ammal, , Muthyalamma v. Chinna Appanna, 1968 (1) An.WR 429, Muniammal v. Raja, , Kameswaramma v. Subramanyam, , Ramamurthy v. Seetharamamma, . In Kishan Bala v. Bankim Chandra, , it was held that quantum of maintenance to be decided not capriciously but on sound discretion. In Indira Bai Patal v. B.A. Patel, and Padmanava Singh Deo v. Smt. Rajkishori Devi and Ors., , it was held that abnormal increase in cost of living is a good ground for increasing the maintenance. In Kashinath Sahu v. Smt. Devi and Ors., AIR 1971 Orissa 295, it was held at Para-8 as hereunder:
"With regard to the question of quantum of maintenance, Courts have to take into consideration several factors like the status of the family, the earnings and the commitments of the husband and what is required by the wife to maintain herself. In regard to the last requirement, Courts have to steer clear of two extremes, namely, they should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation. They should also steer clear of the other extreme, namely, penuriousness."
In Kulbhushan v. Raj Kumari, , approving the view of their Lordships of the Privy Council in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128, it was held at Para-17 as hereunder:
"Reliance was made on behalf of the appellant to the decision of the Judicial Committee in Mt. Ekradeshwari v. Homeshwar, AIR 1929 PC 128, where the Board had to deal with the case of a widow of a deceased in the junior line of the well-known Darbhanga family in Bihar. The trial Court had found in that case that the gross income of the estate was Rupees 1,50,000/- per annum, but the net income was only Rs. 33,000/- per annum after payment of the interest on the heavy encumbrances on the estate in respect of which litigation was pending between the estate and the Maharaja of Darbhanga. In rejecting the claim of the widow to an annual maintenance of Rs. 18,000/- and upholding the concurrent findings of the Courts in India that the maintenance allowance should be fixed at Rs. 4,200/-per annum the Board approved of the observations of the Subordinate Judge to the effect that the said sum would enable the lady "to live as far as may be consistently with the position of a widow in something like the same degree of comfort and with the same reasonable luxury of life as she had in her husband's lifetime". According to the Board maintenance depended:
"upon a gathering together of all the facts of the situation, the amount of free estate, the past life of the married parties and the families, a survey of the conditions and necessities and rights of the members, on a reasonable view of change of circumstances possibly required in the future, regard being, of course, had to the scale and mode of living, and to the age, habits, wants and class of life of the parties." With respect we are in entire agreement with the above dictum and in our view Sub-section (2) of Section 23 makes no departure from the principles enunciated by the Board, except perhaps to a limited extent envisaged in Sub-clauses (d) and (e) of the said sub-section."
10. In the light of the settled legal position and the other principles relating to the grant of maintenance and the enhancement thereof and the provisions relating thereto in the relevant statute which had been referred to supra and the clear findings which had been recorded by the appellate Court while giving enhanced maintenance of Rs. 350/- only where Rs. 600/-had been claimed by way of enhanced maintenance by the wife, taking the over all facts and circumstances into consideration and also on appreciation of the evidence available on record, this Court is of the considered opinion that the appellate Court had arrived at the correct conclusion and hence it being a question of fact the same need not be disturbed in the present second appeal and accordingly the findings recorded by the appellate Court are hereby confirmed. It is needless to say that the second appeal being devoid of merit, shall stand dismissed. In view of the relationship between the parties, each party to bear their own costs.