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2010 DIGILAW 1407 (MAD)

R. Namasivayam v. Rajaram (minor) rep. By his mother & next friend N. Manujla

2010-03-31

M.VENUGOPAL, R.BANUMATHI

body2010
Judgment :- R.BANUMATHI, J. 1. This appeal arises out of judgment in O.S.No.49 of 1997 on the file of I Additional Family Court, Chennai, whereby the trial Court has awarded past maintenance of Rs.300/- to the second plaintiff from 08.02.1994 and future maintenance at the rate of Rs.600/- and directed the appellant to pay a sum of Rs.4000/-towards educational expenses per annum. The unsuccessful defendant is the appellant. For convenience, the parties are referred in their original rank in the suit. 2. The first plaintiff is the wife of the defendant and their marriage was solemnised on 03.06.1984. Out of lawful wedlock, the second plaintiff was born on 14.07.1988. The appellant/defendant was employed in Indian Air Force and the first plaintiff and defendant were living together in Ludhiana, Delhi and other places. The defendant took voluntary retirement from the Air Force on 01.10.1993 and after his retirement, the first plaintiff and the defendant were living at No.33, Muthapudupet, I.A.F. Colony, Madras 55. According to the first plaintiff, she has left for her parental house on 20.10.1993 with the permission of the defendant and she was staying there for ten days. While she was so staying in her parents house, the defendant has sent Ex.A2 legal notice calling upon her to rejoin him immediately and thereafter, the first plaintiff and the defendant were living together till 08.02.1994. Thereafter, the defendant left the house and he also issued a legal notice on 06.06.1994 (Ex.A3) calling upon the plaintiffs to come and reside at Thiruvannamalai. The defendant had also filed a petition for restitution of conjugal rights under Section 9 of Hindu Marriage Act at Thiruvannamalai. Alleging that the plaintiffs are not in a position to maintain themselves and that the defendant is bound to maintain them, the plaintiffs have filed the suit in O.S.No.49 of 1997, claiming maintenance of Rs.500/- per month to the first plaintiff and Rs.300/- to the second plaintiff from 08.02.1994 besides Rs.4,000/-towards educational expenses for the second plaintiff. The plaintiffs have also claimed Rs.750/- and Rs.600/- per month towards future maintenance for the first plaintiff and second plaintiff respectively. The plaintiffs have filed the suit under Order 33 Rule 1 C.P.C. as indigent persons. 3. Resisting the suit, the defendant has filed written statement inter alia contending that the first plaintiff was suffering from mental depression and that she was given treatment in Army Hospital, Delhi since 1986. The plaintiffs have filed the suit under Order 33 Rule 1 C.P.C. as indigent persons. 3. Resisting the suit, the defendant has filed written statement inter alia contending that the first plaintiff was suffering from mental depression and that she was given treatment in Army Hospital, Delhi since 1986. The defendant has alleged that he was threatened on 09.12.1993, 27.12.1993 and on 16.01.1994 which has resulted in the defendant lodging complaints to the police seeking for protection. According to the defendant, he found it difficult to live in Chennai and left for his native place from that date onwards. The defendant has further alleged that efforts taken by him to bring back the first plaintiff and also the child/second plaintiff to his native place and to live with them peacefully has proved futile. The defendant has also alleged that the first plaintiff refused to live with him in his native place on frivolous grounds. The defendant has further alleged that the first plaintiff is voluntarily living separately with her son and therefore, she is not entitled for maintenance. The defendant further averred that the first plaintiff is a trained graduate teacher and studied B.A., B.Ed., and she is earning more than Rs.2,000/-per month by conducting private coaching classes and therefore she is capable of maintaining herself and her child. The defendant has further averred that he is always ready and willing to rejoin the plaintiffs at Tiruvannamalai and that he is drawing only pension of Rs.1,477/- per month and has no other source of income. The defendant has also averred that he has to maintain his aged father who is bed ridden due to paralytic attack and therefore, the plaintiffs are not entitled to maintenance from the defendant. 4. On the above pleadings, two issues were framed in the trial Court. The plaintiff examined herself as P.W.1 and Exs.A1 to A14 were marked. On the side of defendant, defendant was examined as D.W.1 and Exs.B1 to B11 were marked. 5. Upon consideration of oral and documentary evidence, the trial Court held that the defendant has taken sincere efforts to have the matrimonial house at Tiruvannamalai and the first plaintiff was not willing to join her husband at Tiruvannamalai. On the side of defendant, defendant was examined as D.W.1 and Exs.B1 to B11 were marked. 5. Upon consideration of oral and documentary evidence, the trial Court held that the defendant has taken sincere efforts to have the matrimonial house at Tiruvannamalai and the first plaintiff was not willing to join her husband at Tiruvannamalai. The trial Court also held that the first plaintiff has been working as Instructor in a Typewriting Institute from which she was earning Rs.900/-per month and therefore the first plaintiff would not be entitled to claim any maintenance. Insofar as the second plaintiff, the trial Court held that the second plaintiff is born out of lawful wedlock and keeping in view of the paramount interest of the minor child, the father/defendant is bound to pay maintenance to the second plaintiff. Pointing out that the defendant is getting monthly pension of Rs.2,238/- and that he has got means to pay maintenance to the second plaintiff, the trial Court has awarded past maintenance of Rs.300/- per month to the second plaintiff payable from 08.02.1994 and arrears of Rs.10,800/-. The trial Court has also ordered educational expenses of Rs.4,000/-per year to the second plaintiff and further directed payment of future maintenance at the rate of Rs.600/- per month to the second plaintiff. 6. Challenging the judgment of the trial Court, the learned counsel for the appellant/defendant submitted that the trial Court failed to appreciate that the mother of the respondent/second plaintiff was not willing to live with the appellant/defendant and when the first plaintiff was guilty of desertion, the second plaintiff also would not be entitled to maintenance. It was further submitted that under Section 20 of the Hindu Adoption and Maintenance Act, the mother is also liable to maintain the minor child and in this case, the mother/first plaintiff has deliberately withheld the custody of the minor and the first plaintiff being employed, ought to be made liable to share the maintenance of the minor. It was further argued that from out of the meagre pension amount, the defendant has to sustain himself and also his aged father and therefore the quantum of future maintenance of Rs.600/- awarded by the trial Court is on the higher side. 7. It was further argued that from out of the meagre pension amount, the defendant has to sustain himself and also his aged father and therefore the quantum of future maintenance of Rs.600/- awarded by the trial Court is on the higher side. 7. Learned counsel for the respondent/second plaintiff submitted that apart from the pension amount, the defendant is also owning a house in Tiruvannamalai and three house sites in Avadi at Chennai and the defendant is a man of means, who is capable of paying maintenance. It was further submitted that in view of the escalation of prices, quantum of future maintenance of Rs.600/-awarded by the trial Court is a very low amount, warranting no interference. 8. There is no dispute on factual aspects that the first plaintiff and the defendant married on 03.06.1984 and that the second plaintiff was born out of lawful wedlock on 14.07.1988. It is also not in dispute that due to differences, the first plaintiff and the defendant could not reconcile and live together. The defendant is living separately in Triuvannamalai whereas the first plaintiff is living in Chennai and the second plaintiff/son is with the mother. The second plaintiff, then a minor child, continued to be with the mother notwithstanding that the defendant took a separate shelter in his native place at Tiruvannamalai. The welfare of the minor child being the paramount consideration, the trial Court rightly held that the custody of the minor son cannot be taken away from the mother. Even though the defendant had filed O.P.No.530 of 2002 for custody of the minor son, the same came to be dismissed. The Family Court has also dismissed the petition for interim custody of the second plaintiff, who was then minor. The second plaintiff being born out of lawful wedlock, the defendant is bound to maintain the second plaintiff and the trial Court has rightly ordered payment of maintenance to the second plaintiff. 9. Insofar as quantum, according to the defendant, he is only a pensioner getting monthly pension of Rs.2,238/- and that he is not in a position to pay maintenance to the second plaintiff. By perusal of the evidence and judgment of the trial Court, it is seen that apart from getting pension, the defendant also owns a house at No.33, Kariyan Chetty Street, Saram Post, Tiruvannamalai. By perusal of the evidence and judgment of the trial Court, it is seen that apart from getting pension, the defendant also owns a house at No.33, Kariyan Chetty Street, Saram Post, Tiruvannamalai. In his evidence, D.W.1 has admitted that he owns three house sites at Rajiv Nagar, Avadi, Chennai. When the defendant is getting pension of Rs.2,238/- per month apart from owning the house and house sites, we are of the view that the defendant is a man of means, capable of paying maintenance to the second plaintiff. 10. The second plaintiff was born on 14.07.1988. At the time of filing of the suit in 1997, he was aged nine years, studying in school in Chennai. The trial Court has rightly ordered maintenance to the second plaintiff at the rate of Rs.300/-per month and at the time of passing the decree, the trial Court has directed the payment of arrears of past maintenance at Rs.10,800/- i.e. at the rate of Rs.300/-per month from 08.02.1994. Since the second plaintiff was studying in school, the trial Court has directed payment of educational expenses at Rs.4,000/-per year to the second plaintiff, which in our considered view is quite reasonable. In C.M.P.No.10599 of 2005, by the order dated 31.08.2005, this Court has also reiterated the quantum ordered by the trial Court, directing the appellant/defendant to pay Rs.4,000/-annually towards educational expenses of the second plaintiff, then minor. 11. Insofar as future maintenance, the trial Court has directed the defendant to pay future maintenance at the rate of Rs.600/-per month. The quantum of maintenance to be paid is not only for sustenance but also befitting of the status, background and other circumstances of the parties. The second plaintiff then studying in a school in Chennai is entitled to the maintenance, befitting of the status of his parents and the family background. Having regard to the escalation of prices and high inflation, in our considered view, the future maintenance of Rs.600/-awarded by the trial Court is quite reasonable, warranting no interference. By the interim order dated 22.10.2002 in C.M.P.No.11748 of 2002, earlier this Court has directed the appellant/defendant to pay Rs.400/- per mensem towards future maintenance. We are of the view that Rs.600/-per month awarded towards future maintenance, being reasonable and the same is confirmed. By the interim order dated 22.10.2002 in C.M.P.No.11748 of 2002, earlier this Court has directed the appellant/defendant to pay Rs.400/- per mensem towards future maintenance. We are of the view that Rs.600/-per month awarded towards future maintenance, being reasonable and the same is confirmed. The quantum of maintenance of Rs.300/-towards past maintenance, Rs.600/- towards future maintenance awarded by the trial Court and also the amount of Rs.4,000/- per year for the educational expenses are quite reasonable, warranting no interference. 12. It was stated before us that after the order was passed in C.M.P.No.11748 of 2002, the appellant/defendant has been paying the maintenance at the rate of Rs.400/-per month. Since we are confirming the quantum of future maintenance ordered by the trial Court i.e. at the rate of Rs.600/-per month, the appellant/defendant is bound to pay arrears towards future maintenance i.e. at the rate of Rs.200/-per month from the date of decree till the date the second plaintiff attained majority. The second plaintiff born on 14.07.1988 has attained majority on 13.07.2006. the maintenance amount and educational expenses are payable to the second plaintiff till he has attained majority. 13. In the result, judgment of the trial Court in O.S.No.49 of 1997 dated 03.04.2001 and the quantum of past maintenance and also future maintenance and educational expenses are confirmed and this appeal is dismissed with costs. Consequently, connected miscellaneous petitions are closed. 14. The appellant shall pay the arrears of past maintenance, arrears of future maintenance and also the arrears of educational expenses within a period of three months from the date of receipt of a copy of this judgment.