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1989 DIGILAW 154 (KER)

N. Thankappan v. K. G. Chandramathi

1989-03-28

M.M.PAREED PILLAY, VARGHESE KALLIATH

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JUDGMENT M.M. Pareed Pillay, J. 1. Maintenance was granted to the wife and minor children by the Trial Court. The respondents filed the suit claiming maintenance, past and future. 2. First respondent (wife) contended that the appellant married her on 18th November 1976, that two children were born in the wedlock, that after the birth of second child her husband did not care to take her to Madras where he is residing and that he failed to maintain her and children. It is also alleged that the appellant is living with a concubine at Madras. Appellant filed written statement traversing the allegations and contending that the first respondent has been residing away from him without any justifiable reason. 3. Learned counsel for the appellant submitted that the grounds mentioned in the plaint to justify first respondent's separate living have not been established and as there is no cogent evidence to hold that she has any justifiable reason to live separately the Trial Court was not justified in granting maintenance to her. Maintenance granted in favour of the minor children is not disputed. 4. First respondent relies on Ext. A-1 to substantiate her case that her husband is living with a concubine at Madras. As the person who wrote Ext. A-1 to P.W. 1 (brother of the first respondent) was not examined the Trial Court rightly discarded it. Appellant's contention is that if Ext. A-1 is eschewed from evidence there is no other evidence to hold that the first respondent has any justifiable reason to live separately from her husband. Learned counsel for the first respondent submitted that there is ample evidence in the case justifying the conduct of the first respondent in living separate from her husband and hence the judgment of the Trial Court does not warrant interference. 5. Exts. A-1 to A-3 are letters sent by the appellant to P.W. 1. Counsel for the appellant submitted that those letters were written at a time when the appellant was having a confused and perplexed state of mind and therefore it cannot be taken as a circumstance to justify the conduct of the first respondent in living separate from her husband. There is hardly any evidence in support of the above contention. On the other hand, from Exts. There is hardly any evidence in support of the above contention. On the other hand, from Exts. A-1 to A-3 it can be easily discerned that the appellant was having inveterate hatred towards his wife and he cared two pence for her. In Ext. A-1 dated 13th October 1979 appellant in unambiguous terms stated that it would not be possible for him to live with the first respondent as his wife. In Ext. A-2 dated 3rd September, 1980 he stated that he has stopped paying maintenance to the first respondent and wanted P.W. 1 to come to a settlement and threatened legal proceedings. In Ext. A-3 dated 23rd October, 1980 appellant reprimanded P.W. 1 for not sending a reply to his previous letters and asserted that he did not like to continue the marital relationship with the first respondent. He also stated in Ext. A-3 that his greatest desire is to snap the marital relationship with the first respondent. Exts. A-1 to A-3 letters reveals threadbare the adamant hostile attitude of the appellant towards his wife. Ext. B-5 is a letter sent by the first respondent to the appellant. In that letter she has entreated the appellant to take her to his house. Exts. A-1 to A-3 and B-5 are admitted by the appellant. The letters categorically show that the appellant did not want to continue the marital relationship with the first respondent. In view of Exts. A-1 to A-3 and the evidence of P. Ws. 1 and 2 it is obvious that there exists justifiable grounds for the first respondent to live separate from her husband. 6. Section 18(1) of Hindu Adoptions and Maintenance Act, 1956 enacts that a Hindu wife whether married before or after the commencement of the Act, shall be entitled to be maintained by her husband during her life time. S.18(2) provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance under certain conditions. One of the conditions is that in a case where the husband is guilty of desertion without reasonable cause and without the wife's consent or against her wish the wife is entitled to maintenance. While claiming maintenance cruelty can be taken as a ground for the wife to live separately from her husband. One of the conditions is that in a case where the husband is guilty of desertion without reasonable cause and without the wife's consent or against her wish the wife is entitled to maintenance. While claiming maintenance cruelty can be taken as a ground for the wife to live separately from her husband. If the husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere a Hindu wife can keep away from such a husband and claim separate maintenance. Even if it is held that the first respondent has failed to adduce reliable evidence to prove that the appellant habitually resides with a concubine at Madras, that is no ground to reject the claim for maintenance if there is evidence in support of her contention that her husband is guilty of desertion. It cannot be denied that a Hindu wife is entitled to live separately from her husband and claim maintenance if the cause of her living separate is attributable to the husband's conduct. S.18(2) is intended to protect a Hindu wife who by the recalcitrant conduct of her husband is forced to live separately from her husband. In a case where a Hindu wife is found to be living separately from her husband for justifiable reason her claim for maintenance cannot be rejected. 7. As Exts. A-1 to A-3 vividly unfold appellant's hatred and dislike towards the first respondent and that she is treated as unwanted wife the only conclusion possible is that she is not in any way responsible for her separate living. That being the position, the first respondent is entitled to claim separate maintenance from her husband. The learned Sub Judge was perfectly justified in granting maintenance to the first respondent. 8. There is evidence that the appellant was getting monthly salary of Rs. 811. There is also evidence that he had landed properties. His contention that he is prepared to give possession of his landed properties to the first respondent and so he may be absolved from his liability to pay maintenance cannot be accepted as unforeseen difficulties might arise in getting income from those properties. 811. There is also evidence that he had landed properties. His contention that he is prepared to give possession of his landed properties to the first respondent and so he may be absolved from his liability to pay maintenance cannot be accepted as unforeseen difficulties might arise in getting income from those properties. As the first respondent is legally entitled to claim maintenance and as .the Trial Court has granted it, the contention of the appellant that he is prepared to give the income of the properties in lieu of the maintenance cannot at all be accepted. The quantum of maintenance fixed by the Trial Court cannot be stated to be excessive under any circumstance. There is no merit in the appeal. The appeal is dismissed with costs.