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2006 DIGILAW 2552 (MAD)

Vasuki & Others v. R. Dhanakodi & Others

2006-09-26

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (Prayer: These Appeals have been filed against the Judgment and Decree dated 12.09.1990 passed in O.S.NO.14 of 1988 on the file of the Subordinate Court, Mayiladuthurai.) These appeals have been preferred against the Judgment and decree passed in O.S.No.14 of 1988 on the file of the Sub-Court, Mailaduthurai. The plaintiffs in O.S.No.14 of 1988 have filed the suit for maintenance against the Defendant-R.Danakodi, who is the husband of the first plaintiff. For enhancement of the maintenance amount, the plaintiffs have filed the A.S.No.202/1992 and the Defendant/husband has preferred A.S.No.767/1991 against the decree and Judgment passed in O.S.No.14/1988. 2. The short facts of the case of the plaintiffs are as follows:- 2(a) The plaintiffs have filed the suit claiming maintenance against the Defendant, who is the husband of the first plaintiff. The first plaintiff claimed a sum of Rs.400/- per month and plaintiffs 2 and 3, who are daughters of the first plaintiff and the Defendant, who are aged 5 and 1 ½ years respectively, claimed a sum of Rs.300/- each per month from August, 1987. Past maintenance of Rs.9,000/- was also claimed and charge was created on 'C' Schedule immovable properties. The first plaintiff also prayed for return of 'B' schedule movables. 2(b) The Defendant in his written statement has contended that the first plaintiff is not keeping cordial terms in the matrimonial home. The Defendant had filed a petition for restitution of conjugal rights. Only to defeat the said case, the plaintiffs have filed this suit with ulterior motive. The first plaintiff has taken away the jewels presented at the time of marriage by her parents. Since the first plaintiff had deserted the Defendant, she is not entitled to claim any maintenance. The first plaintiff is working as a tailor thereby earning Rs.30/- per day. She is also entitled to get Rs.15,000/- towards her share in the house recently sold by her parents. The Defendant is earning Rs.24/- per day as daily wager. 3. After going through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the first plaintiff is entitled to maintenance of Rs.300/- per month and plaintiff 2 and 3 are each entitled to Rs.200/- per month from the Defendant and that they are not entitled for past mesne profits. 3. After going through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the first plaintiff is entitled to maintenance of Rs.300/- per month and plaintiff 2 and 3 are each entitled to Rs.200/- per month from the Defendant and that they are not entitled for past mesne profits. Aggrieved by the Judgment and decree of the trial Court, the Defendant has filed A.S.No.767/1991 and the plaintiffs have filed A.S.No.202/1992. 4. Now the point for determination in these appeals is whether the plaintiffs are entitled to the maintenance as prayed for along with the past maintenance of Rs.9,000/-? 5. The Point: - Admittedly the first plaintiff is the wife of the Defendant and the plaintiffs 2 and 3 are the minor children born to them. The first plaintiff has asked for a maintenance of Rs.400/- per month from the Defendant and minor plaintiffs 2 and 3 have asked for a maintenance of Rs.300/- each. But the trial Court has ordered a maintenance of Rs.300/- per month for the first plaintiff and Rs.200/- per month each towards the future maintenance for minor plaintiffs 2 and 3. The trial Court has rejected the claim for past mesne profit of Rs.9,000/- on the ground that the first plaintiff after separation was living with her parents. While awarding maintenance, the first and foremost thing to be considered is whether the Defendant/husband has sufficient income to maintain himself and also the petitioners and the next point to be noted is whether the petitioners are having sufficient earnings of their own to maintain themselves. The first plaintiff was examined in this case as P.W.1. According to her, even from the date of her marriage she was subjected to cruelty by her husband/defendant. Admittedly the first plaintiff is an house wife and she is not a working woman. The Defendant was examined as D.W.1, who has admitted in his cross-examination that he had filed a petition before the Family Court and in that case Rs.700/- per month was ordered towards interim maintenance. But he has not paid anything towards the maintenance. In the chief-examination, D.W.1/defendant would admit that his monthly pay is Rs.2,900/-. There is no reason given in the lower Court's Judgment for reducing the maintenance asked for by the plaintiffs. But he has not paid anything towards the maintenance. In the chief-examination, D.W.1/defendant would admit that his monthly pay is Rs.2,900/-. There is no reason given in the lower Court's Judgment for reducing the maintenance asked for by the plaintiffs. The fact that the plaintiffs are under the protection of the first plaintiff's parents, is not a ground for reducing the maintenance amount. It is seen from the evidence of D.W.1 that he is not even paid the interim maintenance ordered by the Family Court even in the year 1990. I am of the considered view that the fact that the plaintiffs are living with the father's house of the first plaintiff will not disentitle them the claim of past maintenance of Rs.9,000/-. In these days of high cost of living it will be very difficult to see both ends meet. The maintenance amount asked for in the petition for the petitioners are very reasonable. So, I am of the view that the petitioners are also entitled to the past maintenance of Rs.9,000/-. Point is answered accordingly. 6. In the result, A.S.No.202/1992 is allowed and the maintenance amount is enhanced from Rs.300/- to Rs.400/- for the first plaintiff and from Rs.200/- each for the plaintiffs 2 and 3 to Rs.300/- each. The plaintiffs are entitled to get the enhanced maintenance from the date of the petition. The petitioners are entitled to past maintenance of Rs.9,000/- as claimed in the plaint along with cost throughout. Time for payment of arrears is one month from this date. The appeal preferred by the Defendant in A.S.No.767 of 1991 is hereby dismissed.