Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 2824 (MAD)

Devaki v. Govindaraja Boopathy & Others

2006-10-25

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (This appeal is filed under Section 96 of C.P.C. praying for the relief as stated therein.) This appeal has been preferred against the decree and Judgment dated 27.9.1989 in O.S.No.81 of 1987 on the file of Sub Court,Tindivanam. 2. The short facts of the case of the plaintiff are as follows: The plaintiff is the wife of the first defendant. They have been blessed with one daughter and was given in marriage and she was living in Gingee. The first defendant is indulged in immoral activities of having concubine and illicit intimacy with women. Now for the past eight years, the first defendant had completely neglected and deserted the plaintiff and now living with the help of her daughter. The first defendant has not taken any care in the plaintiff for the past eight years from 1978 and he is being instigated to be so by his brother's son Kothanda Boopathy. The plaintiff is now at the mercy of her son-in-law, even for a square meal. Now the plaintiff has also developed strained relationship with her daughter. The first defendant deliberately sent the plaintiff out of the house and did not care even to protect and give basic amenities. The first defendant is making an attempt to alienate the properties. The properties more fully described in the plaint schedule are his self acquired properties of the first defendant. The first defendant is getting good income from those properties. The first defendant is getting an annual income of more than Rs.40,000/- from his lands. Considering the status and income, the plaintiff is entitled to maintenance of Rs.1000/- per mensum, besides, the past and future maintenance. The plaintiff is claiming past maintenance for three years at the rate of Rs.1,000/- per mensum and claim Rs.36,000/- and Rs.1,000/- per mensum for future maintenance. Hence the suit. 3. The first defendant in his written statement would contend that the allegations against the first defendant that he is indulged in immoral activities of having concubine are all false. This defendant is not having any extra marital relationship with anyone. This defendant is aged 80 years and he has never driven the plaintiff from out of the marital home. This defendant is a pious, religious and respectable man. He commends good respect in his community in the village. Only with an ulterior motive, the suit has been filed. This defendant never neglected the plaintiff. This defendant is aged 80 years and he has never driven the plaintiff from out of the marital home. This defendant is a pious, religious and respectable man. He commends good respect in his community in the village. Only with an ulterior motive, the suit has been filed. This defendant never neglected the plaintiff. This defendant is physically living with the plaintiff in the same house. The plaintiff has been instigated by her daughter and son-in-law to grab his property. This defendant never abandoned or neglected the plaintiff. He has not committed any cruelty on her. The plaintiff has no reason much less justifiable cause to claim maintenance. The allegations that this defendant did not care for the past eight years are all false. This defendant has got only one daughter. Since this defendant is aged and weak, he is unable to attend personally his agricultural works. This defendant was allotted debts during partition which comes to Rs.22,000/-. To meet the litigation expenses, this defendant has also sold some of the items of the plaint schedule properties. He has also borrowed Rs.8,910/- from one Vasudeva Boopathy to meet the family expenses and another Rs.15,000/- from Kannappa Boopathy; Rs.10,000/- from Gopal; Rs.6,000/-from Elumalai; Rs.26,500/- from Periannan; Rs. 7,000/- from Ranganathan. The plaintiff has also fully aware of the same. The claim of past maintenance of Rs.36,000/- is a luxurious claim. Neither the plaintiff nor this defendant have seen such an income in a month. This defendant family is a simple with poor resources. Therefore, the claim of maintenance at Rs.1,000/- is a tall claim. Since the plaintiff is living with the defendant, there is no cause of action to file the suit. 4. On the above pleadings, the learned trial Judge had framed seven issues and one additional issue and after carefully going through the oral and documentary evidence, has come to a conclusion that the plaintiff is not entitled to any relief in the suit as prayed for and consequently dismissed the suit. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 5. Now the point for determination in this appeal is "Whether the plaintiff is entitled to any maintenance in the suit? 6. The Point: The plaintiff is admittedly aged 70 in the year 1987 whereas the first defendant is aged 76 on the date of filing of the suit. 5. Now the point for determination in this appeal is "Whether the plaintiff is entitled to any maintenance in the suit? 6. The Point: The plaintiff is admittedly aged 70 in the year 1987 whereas the first defendant is aged 76 on the date of filing of the suit. According to the plaintiff, for the past eight years, she is living separately and the first defendant has neglected the plaintiff and failed to maintain her and that she is living with her only daughter. Even though, there is an allegation in the plaint that the defendant is leading a wayward life, there is no evidence let in by the plaintiff to substantiate this contention. It is seen from the Judgment of the trial Court that while deposing before the Court as P.W.1, the plaintiff has not made any character assassination of the first defendant. It is a definite case of the first defendant that even today, the plaintiff is living with the first defendant under the same roof. According to the plaintiff, she is living a separate life for the past eight years. If it is so, there is no explanation forthcoming from the plaintiff as to why she has not filed a suit for maintenance or resorted the help of criminal Court under Section 125 Cr.P.C. for immediate relief of maintenance, in the said long gap of eight years. The plaintiff was not even sent any notice demanding maintenance for the past eight years. It is the case of the plaintiff that she is living with her daughter for the past eight years.To substantiate this contention, she has not examined her daughter. On the basis of Ex A1 family ration card and also on the basis of Ex A2 Voters list, we cannot come to a conclusion that the plaintiff is living separately from the matrimonial home of the first defendant. Ex A1 is not dated, whereas the suit was filed in the year 1987. There is absolutely no document relating to the year prior to the filing of the suit was filed on behalf of the plaintiff to show that even before the filing of the suit, she is living separately. In the evidence, the plaintiff would depose that only for the past four years, she is living separately. Her evidence is contrary to the pleadings. In the evidence, the plaintiff would depose that only for the past four years, she is living separately. Her evidence is contrary to the pleadings. Since the plaintiff has failed to prove that she was living separately due to the desertion of the first defendant, the trial Court has rightly come to the conclusion that the plaintiff is not entitled to any maintenance from the first defendant. I do not find any reason to interfere with the well considered order of the learned trial Judge, which is neither illegal nor infirm. The point is answered accordingly. 7. In fine, this appeal is dismissed, confirming the decree and judgment in O.S.No.81 of 1987 on the file of Sub Court, Tindivanam. Taking into consideration of the close relationship of the parties, there is no order as to costs.