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2005 DIGILAW 1458 (MAD)

Bhavani v. Sekar @ Rajasekaran & Another

2005-08-30

R.BANUMATHI

body2005
Judgment :- (Second Appeal filed under Section 100 C.P.C against the Judgment and Decree dated 19.08.1994 passed by the learned District Judge, Pudukottai in A.S.No.23 of 1989, as stated therein.) This Second Appeal arises out of the Judgment and Decree dated 19.08.1994 of the learned District Judge, Pudukottai in A.S.No.23 of 1989, reversing the Judgment and Decree dated 16.03.1988 of the District Munsif, Pudukottai in O.S.No.574 of 1983. The unsuccessful First Plaintiff is the Appellant. 2. O.S.No.574 of 1983:- Case of the First Plaintiff is that the Defendant married her in the year 1972. The Second Plaintiff was born to the First Plaintiff and the Defendant in the year 1973. The Defendant neglected the First Plaintiff after the birth of the Second Plaintiff. The Defendant had also kept a concubine in the same house where the Plaintiff resided. The Defendant is alleged to have treated the First Plaintiff cruelly and had driven the First Plaintiff from the matrimonial house on 15.03.1982 at Krishnagiri. The Defendant is employed in Survey Department as the Survey Inspector. The Defendant is living with another Woman. The Plaintiffs are unable to maintain themselves. Hence, the Plaintiffs have filed the Suit for Maintenance – claiming Past Maintenance of Rs.5400/- and Future Maintenance at the rate of Rs.150/- per month. 3. Denying the Marriage with the First Plaintiff and the paternity of the Second Plaintiff, the Defendant has filed the Written Statement contending that he is already married to one Jayalakshmi in the year 1974 through whom the Defendant has two children. The First Plaintiff is not the Wife of the Defendant. For the sake of arguments, even if the First Plaintiff is assumed to be the Wife of the Defendant, she has not claimed her right and status and therefore her right becomes extinguished. The Plaintiffs filed the Suit with the intention of getting some profit from the Defendants. The Plaintiffs are not entitled to the maintenance as claimed in the Suit. 4. On the above pleadings, three issues were framed, including the legal status of the First Plaintiff. Onbehalf of the Plaintiffs, P.Ws.1 to 8 were examined. Exs.A.1 to A.5 were marked. On the side of the Defendant, he alone was examined as D.W.1. Exs.X.1 to X.6 were also marked. The Suit was earlier decreed by the Judgment and Decree dated 19.08.1986. On the above pleadings, three issues were framed, including the legal status of the First Plaintiff. Onbehalf of the Plaintiffs, P.Ws.1 to 8 were examined. Exs.A.1 to A.5 were marked. On the side of the Defendant, he alone was examined as D.W.1. Exs.X.1 to X.6 were also marked. The Suit was earlier decreed by the Judgment and Decree dated 19.08.1986. As against the said Judgment and Decree, the Defendant / Husband has preferred an Appeal in A.S.No.26 of 1989 on the file of District Court, Pudukottai. Learned District Judge, Pudukottai remanded the matter back to the Trial Court for fresh consideration. Thereafter, the Trial Court taken up the matter afresh after affording opportunities to both the parties to adduce additional evidence. 5. Upon consideration of the evidence and materials on record, the Trial Court referring to the oral evidence and Ex.A.1 (Birth Certificate of the Second Plaintiff) found that the First Plaintiff is the legally wedded Wife of the Defendant. Referring to the Hospital records – Exs.X.1 to X.4 and X.6, the Trial Court found that the Second Plaintiff is born out of the lawful wedlock of the First Plaintiff and the Defendant. Case of the Defendant denying the status of the First Plaintiff and the paternity of the Second Plaintiff was disbelieved by the Trial Court. 6. As against the Judgment and Decree of the Trial Court, the Defendant / Husband has preferred an Appeal in A.S.No.23 of 1989 on the file of District Court, Pudukottai. First Appellate Court reversed the finding stating that the First Plaintiff is not definite about the year and month of the Marriage. Posing a question that for eight years the First Plaintiff had not taken steps for claiming maintenance, the First Appellate Court found that no inference of marriage could be drawn. Evidence of P.Ws.1,4,5 and 8 was disbelieved on the ground that they have not clearly spoken about the solemnisation of the marriage. Learned District Judge found that the contents in Exs.X.1 to X.4 and Ex.X.6 have been written only on the basis of the information furnished by the First Plaintiff and much evidentiary value cannot be attached to the contents thereon. On those findings, the Plaintiffs' claim for maintenance was negatived and the Suit was dismissed. 7. Aggrieved over the Judgment and Decree of the First Appellate Court, the First Plaintiff has preferred this Second Appeal. On those findings, the Plaintiffs' claim for maintenance was negatived and the Suit was dismissed. 7. Aggrieved over the Judgment and Decree of the First Appellate Court, the First Plaintiff has preferred this Second Appeal. The Second Plaintiff is arrayed as the Second Respondent. The Second Appeal is admitted on the following substantial question of law: "Is the learned District Judge right in dismissing the Suit for maintenance when the documents as well as other evidence produced by the Appellant were categorically established her marriage with the Respondent?" 8. Assailing the findings of the First Appellate Court, learned counsel for the Appellant has contended that Ex.A.1-Birth Certificate proves the paternity of the Second Plaintiff consequently proving the marriage of the First Plaintiff with the Defendant and the First Appellate Court had not properly appreciated evidentiary value of Ex.A.1. Placing much reliance upon Exs.X.1 to X.6, learned counsel for the Appellant has submitted that the First Appellate Court has ignored the material evidence that the First Plaintiff was admitted in the Government Hospital for delivery as the Wife of the Defendant, who was then the Non Gazetted Officer. Much reliance has been placed upon Ex.X.6 and consent endorsement made by the Defendant's Mother for using forceps at the time of delivery. Submitting that the lower Court has erred in reversing the finding of the Trial Court, learned counsel for the Appellant has contended that the reasonsings of the First Appellate Court are perverse and erroneous. Drawing the attention of the Court to the oral evidence of P.Ws.1,4,5 and 8, it is further contended that in view of the evidence adduced by the Plaintiffs, the Judgment and Decree of the First Appellate Court are to be set aside and the Judgment and Decree of the Trial Court are to be restored. 9. It is stated that the Defendant / Husband is at the verge of retirement. Learned counsel for the Appellant / Wife has made a request that if this Court comes to a conclusion that the First Plaintiff is the Wife of the Defendant and allows the Second Appeal, necessary orders may be passed by directing the Defendant to pay the amount payable by him to the Appellant towards maintenance and arrears out of the retirement cum pension benefits within the time stipulated by this Court. 10. The Respondent / Husband served, but has not entered appearance. 10. The Respondent / Husband served, but has not entered appearance. The name of the Respondent has been shown in the Cause List. The defence taken by the Respondent / Husband in the Courts below have been taken into consideration for the disposal of this Second Appeal. 11. As demonstrated infra, the First Appellate Court has committed serious and substantial error and taken erroneous view of the law. Since the First appellate Court has committed serious error in appreciation of evidence, it is necessary to re-assess the evidence adduced by the parties. Since the Defendant / Husband has denied his marriage with the First Plaintiff, to prove the factum of marriage, the First Plaintiff examined herself as P.W.1. First Plaintiff – P.W.1 has clearly spoken about her marriage with the Defendant in 1972 – Thai (ij) month in Pudukottai Mela Third Street. Firstly, in the Plaint averment, the date of marriage was stated as 1973. Thereafter, as per the order in I.A.No.957 of 1985, the year of marriage was corrected as 1972. The definite evidence of P.W.1 has been discarded on the ground that she was not sure about the year and time of her own marriage. The First Plaintiff being a simple rustic woman may not have known the exact year of her marriage. The First Appellate Court erred in brushing aside the evidence of the First Plaintiff on this flimsy ground. 12. P.W.2-Kanagambal is the House owner where the Plaintiff and the Defendant resided in Mela Third Street, Pudukottai. To substantiate the evidence of P.W.1, Kanagambal – P.W.2 was examined. While she was examined in Chief (on 14.08.1986), P.W.2 has clearly spoken about the marriage of the First Plaintiff and the Defendant and that they were living together in her house as Tenants. In the Chief Examination, she has also spoken about the Birth of the Second Plaintiff. Later P.W.2 was recalled and cross-examined on 13.01.1987 (perhaps after the Judgment and Decree in A.S.No.26 of 1986 – remanding the matter to the trial Court for fresh consideration). While P.W.2 was cross-examined, she resiled from her earlier statement and feigned ignorance of the Defendant. The Trial Court considered this aspect and rightly found that during the interrugnum period, P.W.2 must have been gained over by the Defendant. It is relevant to note that the Defendant is related to P.W.2. While P.W.2 was cross-examined, she resiled from her earlier statement and feigned ignorance of the Defendant. The Trial Court considered this aspect and rightly found that during the interrugnum period, P.W.2 must have been gained over by the Defendant. It is relevant to note that the Defendant is related to P.W.2. Much weight cannot be attached to the hostile attitude exhibited by P.W.2. This seems to have weighed substantially in the mind of the First Appellate Court. The First Appellate Court was not right in properly appreciating the time gap between the Chief Examination and Cross-examination of P.W.2. 13. P.W.4-Sivagami Ammal was another Tenant under P.W.2, who was also residing in Mela Third Street, Pudukottai. P.W.4 has also spoken about the solemnisation of the marriage of the First Plaintiff and the Defendant. She has also spoken about the birth of the Second Plaintiff. P.W.5-Mother of the First Plaintiff has spoken about the solemnisation of the marriage in accordance with the Hindu rites, Caste Customs. P.W.8-Maternal Uncle of the First Plaintiff has also consistently spoken about the marriage. The Trial Court, which had the opportunity of seeing and hearing the Witnesses had accepted the evidence of P.Ws.1,4,5 and 8 as credible, establishing the factum of marriage and the birth of the Second Plaintiff. 14. While so, the First Appellate Court attached undue importance to the inability of the Witnesses to answer few aspects like whether the Invitation Card was printed or not and whether the marriage was attended by the family Members of the Defendant or not and how the ceremonies were performed. The marriage was in the year 1972. The Witnesses have deposed in the Court in or about 1986 or 1987 – nearly 15 years after the marriage. The Witnesses may not have been in a position to recall the events attached to the marriage. The First Appellate Court attached much importance to the answers elicited in the Cross-examination and ignored the evidentiary value of the consistent version of the Witnesses in their Chief examination. The First Appellate Court was not right in disbelieving the evidence of P.W.1 on the flimsy ground that she was not unable to correctly state the year of her marriage. 15. The marriage and the relationship of the Husband and Wife between the Defendant and the First Plaintiff is fortified by Ex.A.2 – Letter written by the Defendant. The First Appellate Court was not right in disbelieving the evidence of P.W.1 on the flimsy ground that she was not unable to correctly state the year of her marriage. 15. The marriage and the relationship of the Husband and Wife between the Defendant and the First Plaintiff is fortified by Ex.A.2 – Letter written by the Defendant. Admittedly in the year 1980, the Defendant was working as Surveyor in Krishnagiri. From Krishnagiri, the Defendant had written a Letter (Post Card) dated 03.07.1980 to the First Plaintiff expressing his inability to take the First Plaintiff with him. In Ex.A.2-Letter, the Defendant had also enquired about the Second Plaintiff – Chitra. When the Defendant was confronted about Ex.A.2-Letter, the Defendant tried to evade the same by denying writing of any such letter. Since the Post Cart carries the seal of the year 1980, which also contains the then address of the Defendant, denial of writing Ex.A.2 – Letter by the Defendant has no force. 16. From the evidence of P.Ws.1,4,5 and 8, the solemnisation of the marriage and the cohabitation of the First Plaintiff with the Defendant and the Birth of the Child is well brought out. Law presumes in favour of the Marriage. When legal and valid marriage is proved to have been taken place coupled with the Birth of the child, the presumption of the marriage gets strengthened. First Appellate Court erred in not keeping in view the presumption of marriage. The strong presumption of marriage ought to be rebutted by the Defendant. The First Appellate Court failed to draw inference from the proved facts and evidence. 17. In fact, there is no definite denial of marriage by the Defendant. In the Written Statement, denial of marriage is only half hearted. In Paragraph 2 of the Written Statement, the Defendant had denied his marriage with the First Plaintiff and has also denied the birth of the Second Plaintiff. In Paragraph 4 of the Written Statement, the Defendant has put forth an alternative plea alleging that even for the sake of arguments if the First Plaintiff is taken to be the Wife of the Defendant, in view of the delay in claiming the maintenance, her right is extinguished. Even that inconsistent defence plea adopted by the Defendant is not established by proper evidence. Even that inconsistent defence plea adopted by the Defendant is not established by proper evidence. Excepting the evidence of the Defendant (D.W.1), neither oral evidence nor documentary evidence has been adduced on the side of the Defendant. The sole testimony of D.W.1 is not sufficient to rebut the presumption of marriage raised in favour of the First Plaintiff. 18. It is well settled that the Appellate Court has to bear in mind that it had not the opportunity of seeing the Witnesses and to note their demeanour. When the decision of the lower Court hinges upon the credibility of the Witnesses, unless there is something to indicate that a special feature has escaped the notice of the Trial Court, the Appellate Court should not interfere with the finding of the Trial Court. The Trial Court accepted the case of the Plaintiff of her marriage with the Defendant mainly on the evidence of P.Ws.1,4,5 and 8 and also on the documentary evidence. A careful assessment of the oral evidence coupled with the documentary evidence clearly indicate the view taken by the Trial Court is correct. The First Appellate Court had not appreciated the oral evidence in the light of the documentary evidence and not properly weighed the reasonings of the Trial Court. 19. The documentary evidence adduced by the Plaintiffs is unimpeachable, strengthening the Plaintiffs' case. Ex.A.1 is the Birth Certificate of the Second Plaintiff, showing that the Second Plaintiff was born in Ranee's Hospital, Pudukottai. The Second Plaintiff was born on 26.02.1973. In Ex.A.2, the names of the Second Plaintiff's Father and Mother are stated as "Raja Sekaran / Bhavani" and the residence is stated as "17, West III Street, Pudukottai". Ex.A.1 is the strong piece of evidence establishing the paternity of the Second Plaintiff. While so, the First Appellate Court committed serious error in ignoring Ex.A.2, stating that the information for the entries in the Birth Register must have been furnished only by the First Plaintiff. The approach of the First Appellate Court in brushing aside Ex.A.1 is erroneous and unsustainable. 20. We may usefully refer to the documentary evidence, which is of much importance and value. As noted earlier, the Second Plaintiff was born on 26.02.1973 in Ranee's Hospital, Pudukottai. Ex.X.1 is the inpatient admission register. The approach of the First Appellate Court in brushing aside Ex.A.1 is erroneous and unsustainable. 20. We may usefully refer to the documentary evidence, which is of much importance and value. As noted earlier, the Second Plaintiff was born on 26.02.1973 in Ranee's Hospital, Pudukottai. Ex.X.1 is the inpatient admission register. As per the evidence of P.W.3 (D.M.O. Office Record Clerk), the First Plaintiff was admitted as inpatient as the Wife of Raja Sekaran (Defendant). The Defendant being Non Gazetted Officer, the First Plaintiff was admitted in the Hospital as the Wife of the Government Servant, as is clear from the evidence of P.W.3. The First Plaintiff has obtained the benefits in the hospital as the Wife of Non Gazetted Officer, which is clearly seen from the entry in Ex.X.1. 21. Ex.X.2 is the Extract of Gynecologist Section of Ranee's Hospital. From Ex.X.2, it is made clear that the First Plaintiff was admitted in the Hospital (for delivery) on 25.02.1973 as Wife of Raja Sekaran. For usage of forceps, the Defendant's Mother – S.Lakshmi had made consent endorsement – Ex.X.6, which reads "...vd; kUkfs; gthdpf;F kaf;fk; bfhLj;J Ma[[jk; nghl;Lf; FHe;ij vLf;f rk;kjk;..." P.W.6 - Rathinam has spoken about the endorsement by the First Plaintiff's Mother-in-law made in Ex.X.6. Ex.X.6 and the evidence of P.W.6 clinchingly establishes the valid marriage between the First Plaintiff and the Defendant. Unless there was a valid marriage between the First Plaintiff and the Defendant, the Defendant's Mother would not have accompanied the First Plaintiff for admitting her in the Hospital for delivery and would not have made such an endorsement. 22. P.W.6 – Rathinam is the Record Clerk in the Hospital, Pudukottai. P.W.6 had spoken about the entry made in the Stoppage Account Register, which is normally maintained for the inpatients admitted under the Non-Gazetted Officers quota. P.W.6 had also spoken about the endorsement made by the First Plaintiff's Mother-in-law (Ex.X.6). P.W.7 – Record Clerk of the Government Hospital has spoken about Ex.X.4 – Stoppage Register, as per which, the First Plaintiff's Husband name has been stated as the Settlement Inspector – Raja Sekaran. P.W.7 has spoken that the rest of the documents pertaining to the period have been destroyed (Ex.X.5 – Certificate). The evidence of P.Ws.3, 6 and 7 clearly shows that the First Plaintiff was admitted in the Hospital under Non-Gazetted Officers quota as the Wife of Survey Settlement Inspector – Raja Sekaran. P.W.7 has spoken that the rest of the documents pertaining to the period have been destroyed (Ex.X.5 – Certificate). The evidence of P.Ws.3, 6 and 7 clearly shows that the First Plaintiff was admitted in the Hospital under Non-Gazetted Officers quota as the Wife of Survey Settlement Inspector – Raja Sekaran. The strong piece of documentary and oral evidence was brushed aside by the First Appellate Court on the puerile ground that the information for the contents must have been given only by the First Plaintiff. At the time when the Second Plaintiff was born, there was no dispute between the First Plaintiff and the Defendant. While so, the First Plaintiff had no reason to give such false information at that stage. 23. The First Appellate Court erred in ignoring the material evidence. The appreciation of evidence is erroneous and is to be reversed, restoring the findings of the Trial Court that the First Plaintiff is the legally wedded Wife of the Defendant and that the Second Plaintiff is born out of the lawful wedlock of their marriage. Under Section 18 of the Hindu Adoptions and Maintenance Act, the Defendant is bound to maintain his Wife if he has another Wife living. Even in the Written Statement, the Defendant has stated that he has married one Jayalakshmi through whom he is having two children. Further, from the evidence of P.W.1, it is seen that the Defendant deserted the Plaintiffs. At that time when the Suit was filed in 1983, a small amount of Rs.150/- per month was claimed as maintenance. The Defendant has not even paid that amount and disowned his responsibility towards his Wife and Daughter. The Second Plaintiff though completed 18 years, remains unmarried and stated to be not in a position to maintain herself. The Defendant is bound to maintain herself. Hence, the Decree passed by the Trial Court ordering past maintenance of Rs.5400/- and future maintenance at Rs.150/- per month is restored. 24. Considering the facts that the Defendant / Husband is at the verge of retirement and the parties have been fighting out the litigation for more than 22 years. The Defendant / Husband is working in the Survey Department. 24. Considering the facts that the Defendant / Husband is at the verge of retirement and the parties have been fighting out the litigation for more than 22 years. The Defendant / Husband is working in the Survey Department. In the interest of justice, it is ordered that priority is to be given for payment of maintenance arrears on the retiral benefits payable by the Defendant to the Appellant and to the Second Respondent / Second Plaintiff. Since the scope of the Second Appeal is limited, it is open to the Appellant / Wife to approach the concerned Authorities (Survey Department) for early payment of maintenance of arrears. 25. For the foregoing reasons, the Judgment and Decree dated 19.08.1994 of the learned District Judge, Pudukottai in A.S.No.23 of 1989 is set aside. The Judgment and Decree of the District Munsif, Pudukottai in O.S.No.574 of 1983 (dated 16.03.1988) is confirmed. This Second Appeal is allowed with costs throughout. 26. In the interest of justice, it is ordered that priority is to be given for payment of maintenance arrears with interest at the rate of 6% per annum on the retiral benefits payable by the Defendant to the Appellant and to the Second Respondent / Second Plaintiff. It is open to the Appellant / Wife to approach the concerned Authorities (Survey Department) for early payment of maintenance and arrears. Future Maintenance of Rs.150/- per month is payable on or before seventh of every succeeding English Calendar month.