Himachal Pradesh High Court
__________________________________________________________ vs Smt. Nias Pati on 5 May, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA R.S.A. No. 451 of 2006 Reserved on: 25.04.2016 Date of judgment: 05 .05.2016 __________________________________________________________ Shri Jehar Singh .
.....Appellant.
Versus Smt. Nias Pati.
......Respondent.
__________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
of 1 Whether approved for reporting? Yes _______________________________________________ For the appellant: Mr. I.D. Bali, Sr. Advocate with Ms. Minakshi Bali, Advocate.
rt For the respondent: Mr. Rajinder Dogra, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant-defendant, Jehar Singh, (hereinafter called 'the defendant'), against the judgment and decree passed by the learned Trial Court in favour of the respondent-plaintiff (hereinafter called 'the plaintiff') and affirmed by the learned Lower Appellate Court, granting the maintenance to the tune of Rs.1200/- per month to the plaintiff.
2. Briefly stating the facts giving rise to the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 2present appeal are that the plaintiff maintained a suit for maintenance against the defendant contending that plaintiff is wife of defendant and the parties are Hindu and are governed by Hindu Law. The defendant is continuously .
neglecting the plaintiff and is not maintaining her. The defendant in the year, 1987, instituted a Civil Suit against the plaintiff disputing the relationship of husband and wife interse the parties. The said suit was dismissed by the of then Sub Judge, Court No.2, Rohru, vide judgment and decree dated 29.11.1994. The defendant filed appeal, rt assailing the decree dated 29.11.1994 but the same was also dismissed. The relationship of husband and wife inter-
se the parties stood fully established. The status of the plaintiff is that of legally wedded wife of defendant. The defendant has totally refused to provide maintenance allowance, amenities and necessities of life to the plaintiff even after disposal of the said suit. The plaintiff is having no source of income. The defendant is a Government employee and is getting salary more than Rs.10,000/- per month besides the income from other sources. The plaintiff required Rs.5,000/- per month for maintenance. So the ::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 3 plaintiff has filed the suit for grant of maintenance at the rate of Rs.1200/- per month including the arrears of maintenance of Rs.43,200/- for the period from 14.9.1998 to 13.9.2001.
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3. The defendant contested the suit on maintainability, cause of action, locus standi and denied the relationship of husband and wife inter-se the parties.
As per defendant, he is having wife Smt. Pingla Devi for the of last twelve years and prior to that, Smt. Jagmani from Kinnaur, was his wife and prior to her Smt. Bhajan Devi, rt R/o of Rohal, was his wife. The defendant at no point of time married or kept the plaintiff, as his wife. The defendant along with Dalip Singh his real brothers is living in Hindu joint family. The plaintiff is wife of Dalip Singh and out of this wedlock, two sons Balwant and Jeevan, are alive. The plaintiff is living with Dalip Singh as his wife.
The son of the plaintiff was resident of Gram panchayat Rohal and is also sitting President and husband of the plaintiff was Secretary, Gram Panchayat Rohal. The defendant is issueless and was serving in Ayurvedic Department from where he was retired. The plaintiff to ::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 4 grab the benefits of defendant has filed the sale suit. Dalip Singh and defendant are from different mother.
4. The learned trial Court framed following issues:-
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1. Whether there exists relationship of husband and wife between the parties?
OPP
2. Whether the plaintiff is entitled for maintenance, as prayed? OPP of
3. Whether the suit of the plaintiff is not competent and maintainable? OPD
4. Whether there is no legal and enforceable rt cause of action to file the present suit? OPD
5. Whether the plaint is liable to rejected under Order 7 Rule 11 CPC? OPD
6. Relief
5. After deciding issues No. 1 and 2 in favour of the plaintiff and issues No.3 to 5 against the defendant, allowed the maintenance of Rs.1200/- to the plaintiff and against the defendant and this judgment and decree was affirmed by the learned Lower Appellate Court.
6. Feeling aggrieved by the concurrent findings of the Courts below, the plaintiff has maintained the present appeal, which stands admitted on the substantial ::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 5 questions of law:-
1. Whether Hindu wife who has a living husband and who lives with him can claim maintenance from another man at .
the same time claiming him to be her husband?
2. Whether for the purpose of Section 18 of Hindu Adoption and Maintenance Act, it is necessary to prove that there is a valid of marriage between the parties and a Hindu wife who is living with another husband is entitled to claim maintenance from the rt person husband?
to whom she claims as her
3. The observance of ceremonies prevalent in a community are necessary to be proved to establish the validity of marriage. The marriage, thus, of the parties has not been proved and therefore, the judgments of the Courts below are erroneous and liable to be set aside?
7. Learned counsel for the appellant/defendant has argued that concurrent findings of the Courts below are against law and liable to be set aside, as the plaintiff has no cause of action in her favour and the earlier ::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 6 judgments in the suit filed by the defendant, against the plaintiff had come in favour of the plaintiff for the reasons that the husband of the plaintiff, who is also the brother of the defendant, manipulated the Panchyat record and does .
not allow correct record to be produced in the Court.
Learned counsel appearing for the plaintiff/respondent has argued that the concurrent findings of the Courts below need no interference.
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8. The perusal of Ex.PW-1/A, copy of the judgment dated 29.11.1994, passed by the then Sub rt Judge First Class-II, Rohru, now Civil Judge (Sr. Division), makes it evident that defendant disputed the status of the plaintiff as his wife in a suit filed by him, in which, plaintiff was one of the party. The entry in the revenue record was also challenged in that suit by the defendant, wherein, the plaintiff was recorded as his wife. The Court in that case held that the plaintiff is wife of the defendant and that judgment had attained finality. The appeal against that was also decided against the defendant and in favour of the plaintiff and that the findings with regard to the status of the plaintiff as wife of the defendant stood ::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 7 proved and attained finality. It has come on record that the plaintiff is joint wife of the defendant and Dalip Singh.
Dalip Singh is the brother of the defendant. Though the defendant has taken the plea that he has kept Smt. Pingla .
Devi as his wife for the last 14-15 years, but it is on record that prior to Pingla Devi as his wife, the plaintiff was living with the defendant as his wife. The reason that the defendant has kept a woman with him as a wife, is of sufficient reasons for the plaintiff to live separately from the defendant. It is on record that the defendant is not rt providing any maintenance to the plaintiff and she is depending upon her sons. The defendant has refused and neglected to maintain the plaintiff. The Courts below, taking into consideration the fact that the defendant has retired from the Government Service and after taking into consideration his pension etc. has awarded nominal maintenance of Rs.1200/- per month, which cannot be said to be in any manner unreasonable.
9. Section 18 of the Hindu Adoption and Maintenance Act, 1956 reads as under:-
"18.Maintenance of wife.-::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 8
(1) Subject to the provisions of this secti9on, 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.
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(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 of reasonable cause and without her consent or against her wish, or of willfully neglecting her;
rt (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 concubine elsewhere:
(f) if he has ceased to be a Hindu by conversation to another religion;
(g) if there is any other cause justifying her living separately;
(3) A Hindu wife shall not be entitled to ::: Downloaded on - 15/04/2017 20:16:45 :::HCHP 9 separate residence and maintenance from her husband and if she is unchaste or ceases to be a Hindu by conversation to another religion."
10. In the present case, the defendant is living with .
another wife as per own case of the defendant and so, the plaintiff being the wife of the defendant, is entitled for maintenance, while living separately under the Hindu Adoption and Maintenance Act.
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11. As far as status of the plaintiff as a wife of the defendant is concerned, in Ex.PW-1/A, the judgment which rt has attained finality, it has come on record that the plaintiff was married with defendant and Shri Dalip Singh is brother of the defendant and in the village of the parties, there is a custom of joint marriage of the brothers with one lady. The Ex-president endorsed the document Ex.P-6 in that suit that Jehar Singh, defendant, being the eldest, had married Nias Patti and Nias Patti (plaintiff) is treated as his wife and of Dalip Singh, as per the custom in the village.
So, in these circumstances, the Courts below have rightly come to the conclusion that plaintiff is wife of the defendant. The question of law as framed by this Hon'ble ::: Downloaded on - 15/04/2017 20:16:46 :::HCHP 10 Court is answered accordingly, holding that the plaintiff is entitled for the maintenance from the defendant. As per the prevalent custom, she is the wife of defendant.
12. As far as question of law No.3 is concerned, as .
discussed hereinabove, in the earlier judgment relation inter-se the parties has attained finality and so it is already settled that the plaintiff is the wife of the defendant.
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13. As far as the question of law No.5 is concerned, it has come on record that by way of evidence of the rt persons of locality and through their endorsements on the documents that the custom is prevalent in the village with regard to joint marriage of brothers with one lady, so, the same is answered accordingly.
14. The net result of the above is that the concurrent findings of the Courts below suffer from no illegality and require no interference by this Court. Hence, the present appeal is dismissed. No order as to costs.
(Chander Bhusan Barowalia) Judge 05th May, 2016 ( r.atal) ::: Downloaded on - 15/04/2017 20:16:46 :::HCHP