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2011 DIGILAW 4377 (MAD)

A. K. Vijayakumar v. Manimekalai

2011-10-31

S.MANIKUMAR

body2011
JUDGMENT ( 1. ) THE unsuccessful husband, who has lost his defence for payment of maintenance to his wife and suffered a charge decree on the property, has preferred the second appeal. ( 2. ) FOR sake of convenience, the parties are referred to, in their litigate status before the lower Court. Plaintiff?s case in brief is as follows: She is a wife of the defendant. The marriage between them took place about 7 years ago, prior to the institution of the suit, as per the Hindu Rites and Customs. Out of the wed lock, a daughter, named Sangeetha, was born. The defendant has addicted to vices. His conduct and character was always inconsistent and subject to unpredictable vagaries. He had illicit relationship also. As the plaintiff questioned his conduct, the defendant drove herself and her minor daughter, out of the matrimonial home. As she was unable to maintain herself with her minor daughter, she caused a notice, dated on 08.12.1999, claiming maintenance of Rs.3000/- per month, towards her food, clothes and for other necessities. Though the notice was acknowledged, the defendant did not choose to pay maintenance. ( 3. ) ACCORDING to the plaintiff, the defendant is in possession of valuable coconut grove and was getting a monthly income, not less than Rs.10,000/-, from his agricultural lands. Besides, he was also doing money lending business and earning not less than Rs. 10,000/- per month, by way of interest alone. Though she had demanded a sum of Rs.3,000/- towards maintenance, in her notice, finding it difficult, even to pay the Court Fee, restricted her claim and filed a suit praying for a direction, (1) to pay her a sum of Rs.2, 500/- per month towards maintenance for food and clothing, from the date of suit till her lifetime, and (2) to create a charge over the property morefully described in plaint with cost. ( 4. ) THE defendant denied all the connections raised against him, regarding his conduct and character. He denied the contention that he drove the plaintiff and her minor daughter out of the matrimonial home. He also denied that he is getting monthly income from his agricultural land and money lending business. According to him, he had not taken any steps to sell any property to the third properties. He denied the contention that he drove the plaintiff and her minor daughter out of the matrimonial home. He also denied that he is getting monthly income from his agricultural land and money lending business. According to him, he had not taken any steps to sell any property to the third properties. A panchayat was held at the instigation of the plaintiff?s father and a larger portion of his share was given to the minor daughter, represented by plaintiff, Natural Guardian. A registered partition deed was also executed to that effect. Without prejudice to the above, the defendant also disputed the quantum of maintenance. On the above pleadings, the lower Court has framed two issues for consideration, (1) Whether the plaintiff is entitled to claim maintenance from the defendant? (2) To what other relief? ( 5. ) THE plaintiff examined herself as PW.1.Ex.A1, dated 08.12.1999, Lawyer. Notice, Ex.A2, dated 21.12.1999, Reply Notice and Ex.A3, dated 15.12.1999, True copy of the Sale deed were marked on the side of the plaintiff. THE defendant examined himself as DW.1 and no documents were marked on his side. ( 6. ) ON evaluation of pleadings and evidence, the lower Court held that the defendant has failed to maintain his wife and the child and that there was no independent income for the plaintiff to maintain herself. The Lower Court further held that plaintiff had not voluntarily deserted her husband, without any reasonable cause, but on the other hand, the plaintiff and in such circumstances, held that the plaintiff is entitled to claim maintenance from the defendant. As regards quantum, considering the fact that the defendant had allowed a portion of the property to the minor daughter, represented by her mother and guardian, the plaintiff and the likelihood of income from the said property, the lower Court has fixed Rs.1,500/- per month as maintenance. Taking note of the fact that the defendant had alienated a portion of its property on 15.12.1999, immediately after the receipt of Ex.A1, suit notice, the circumstantial evidence, the trial Court, held that the plaintiff is entitled to charge over the plaint scheduled property of the defendant. Accordingly, the lower Court, by its judgment and decree, dated 18.02.2002, made in O.S.No.681 of 1999, directed the defendant to pay a sum of Rs.1,500/- per month to the plaintiff, as maintenance from the date of plaint, with a charge over the plaint property. Accordingly, the lower Court, by its judgment and decree, dated 18.02.2002, made in O.S.No.681 of 1999, directed the defendant to pay a sum of Rs.1,500/- per month to the plaintiff, as maintenance from the date of plaint, with a charge over the plaint property. The lower court has further directed that the amount of maintenance shall be paid on or before 10th of every English calendar month. ( 7. ) BEING aggrieved by the same, the defendant has preferred an appeal in A.S.No.43 of 2002, on the file of the Sub-Court, Pollachi. Upon consideration of the materials on record, the appellate Court, by its judgment and decree, dated 29.07.2003, confirmed the decree. ( 8. ) RECORD of proceedings shows that while entertaining the second appeal, this Court has framed following substantial question of law, "In the facts and circumstances of the case, whether the Courts below are right in awarding. A decree for maintenance having no regard to the property in an extent of 3.97 acres of agricultural land given to the minor child who is in the custody of the respondent herein?" In support of the above, Mr. K. Kalyanasundaram, learned counsel for the appellant submitted that both the Courts below have failed to consider that only due to the indifferent attitude of the plaintiff, the spouses were living separately and that there was no acceptable reason given by the plaintiff for her living away from the matrimonial home and in the abovesaid circumstances, the finding recorded by the Court below that the defendant had failed to maintain his wife and child, is perverse. He further submitted that to show a bona fide, the defendant had also executed a partition deed, dated 03.09.1997, in favour of her minor daughter, by which, agricultural land to an extent of 3.09acres, valued at Rs.72, 900/- had already been allotted and that only 3.75 acres of land, valued at Rs.25,000/- remain with the defendant. It is also his contention that the mother and guardian of the minor child, the plaintiff is in possession and enjoyment of the properties allotted to the child and the income derived from the same, is sufficient to meet out the expenses towards her maintenance and also the child. ( 9. ) PER contra, to sustain the impugned judgment, Mr. It is also his contention that the mother and guardian of the minor child, the plaintiff is in possession and enjoyment of the properties allotted to the child and the income derived from the same, is sufficient to meet out the expenses towards her maintenance and also the child. ( 9. ) PER contra, to sustain the impugned judgment, Mr. T. Murugamanickam, leaned for the counsel for the plaintiff submitted that both the Courts have concurrently held that the defendant has failed to discharge his obligations, viz, maintaining his wife and in the absence of any perversity, no interference is called for. He also submitted that the defendant in his cross-examination, has categorically admitted that no lands were allotted to the plaintiff and that the income from the coconut groove, would be around Rs.4,000/- to Rs. 5,000/- . Both the Courts below also have categorically found that immediately after receipt of the plaintiff?s notice, Ex.A1 on 08.12.1999, the defendant has alienated a portion of his property under Ex.A3, dated 15.12.1999, Sale Deed. He prayed for dismissal of the Second Appeal. Heard the learned counsel for the parties and perused the materials available on record. ( 10. ) THE concurrent findings recorded by the lower Courts regarding failure of the defendant to maintain the plaintiff on appreciation of pleadings and evidence cannot be said to be perverse and therefore, no interference is called for. Considering the expenditure likely to be incurred, in meeting out the basic amenities, food, clothing, shelter and the cost of materials prevalent at the time of claim, the lower Court has awarded maintenance of Rs.1500/- per month, i.e, only Rs.50/- per day. Though the learned counsel for the defendant has contended that there is a likelihood of deriving some income from the properties allotted to the minor daughter, even as per his deposition, the income would be approximately between Rs. 4,000/- to Rs. 5,000/- and that considering the expenses required for food, clothing, education and other recurring expenses, it would not be appropriate for the defendant to contend any apportionment from the abovesaid income, which is exclusively meant for the child. 4,000/- to Rs. 5,000/- and that considering the expenses required for food, clothing, education and other recurring expenses, it would not be appropriate for the defendant to contend any apportionment from the abovesaid income, which is exclusively meant for the child. Section 39 of the Transfer of property Act, deals with transfer where third person is entitled to maintenance and the said Section is extracted hereunder: Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands." ( 11. ) ON the aspect of charge over the property, it is evident from the conduct of the husband that immediately after Ex.A1, Notice, he has alienated a portion of his property and therefore, the apprehension of the plaintiff wife is well founded and protected by a charge decree. ON the aspect of charge over the property of the husband, it is useful to mention few decisions. (i) In Banda Manikyam v. Banda Venkayama and others. AIR 1957 AP 710, the Court held as follows: "This right to separate maintenance which was previously based on texts and decisions is now expressly conferred by statute under Act XIX of 1946. It is true that the husband or father is under a personal obligation to maintain his wife or infant children. This does not mean that the obligation could be enforced only sending him to Jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father, as the case may be. The rule as to personal obligation only emphasises the legal and imperative duty of the husband to maintain his wife and minor children irrespective of the possession of any property." ?.. "The Hindu Law Texts and the-important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether Joint or self-acquired. They recognize the subordinate interest of the wife in her husband?s property arising out of her married status. "The Hindu Law Texts and the-important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether Joint or self-acquired. They recognize the subordinate interest of the wife in her husband?s property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependents of their maintenance. They further treat her as a member of a Hindu joint family entitled to be maintained out of joint of funds. The decisions of the various High Courts to the same line, recognize her subordinate interest in her husband?s property, and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, there-force , is entitled to be maintained out of the profits of her husband?s property and, if so, under the express terms of Section 39 of the T.P. Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim." (ii) The above decision has been approved by the Full Bench of the Andra Pradesh High Court in Chandramma v.M. Venkatareddi, [AIR 1958 Andra Pradesh 396], wherein, the Full bench has observed as follows: "This right to separate maintenance which was previously based on texts and decisions is now expressly conferred by statute under Act XIX of 1946. It is true that the husband or father is under a personal obligation to maintain his wife or infant children. This does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father as the case may be. This does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father as the case may be. The rule as to personal obligation only emphasises the legal and imperative duty of the husband to maintain his wife and minor children irrespective of the possession of any property." (iii) In Tulasamma v. Sesha Reddi reported in AIR 1977 SC 1944 , legal status of wife?s maintenance from the property of her husband has been considered, as follows: "When the husband is alive, he is personally liable for the wife?s maintenance, which is also a legal charge upon his property, this charge being a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband?s property. But after his death his widow?s right of maintenance becomes limited to his estate, which when it passes to any other heir, is charged with the same. There cannot be any doubt that under Hindu Law, the wife?s or widow?s maintenance is a legal charge on the husband?s estate: but the courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely, a claim against the husband?s heir, or an equitable charge on his estate; hence the husband?s debts are held to have priority, unless it is made a charge on the property by a decree." "To sum up, therefore, according to Sastri?s interpretation of Shastric Hindu Law the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband?s property though in a subordinate sense, i.e., the wife has no dominion over the property." ??. "The Hindu female?s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has, the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right." (iv) In Raghavan v. Nagammal reported in AIR 1979 Mad 200 =(1979) 92 L.W.710, the question considered by this Court, was whether the wife has got a right of maintenance, in claiming charge over the property of her husband under Section 28 of the Hindu Adoptions and Maintenance Act (78 of 19560 or under Section 39 of the Transfer of Property Act. While holding that the wife is entitled to seek for charge over the property of her husband, this Court held that wife is entitled to seek for charge over properties of her husband under Section 39 of the Transfer of Property Act. Apart from the abovesaid decisions, this Court has also considered few decisions, which are worthwhile to reproduce hereunder. "9. As early as Lakshman Ramachandra v. Sathyabhama ((1877)ILR 2 Bom 494) West, J. considered the Hindu law texts pertaining to the rights of a Hindu woman in her husband?s property and pointed out that, by marriage she acquired an interest in the husband?s property though only, according to some writers, of a secondary kind such as may be divested by gift by the husband to a third party. 10 In Jamna v. Machul Sahu ((1878) ILR 2 All 315) it was ruled by the Allahabad High Court that a wife is, under the Hindu Law, in a subordinate sense a co-owner with her husband and, therefore, the husband cannot alienate his property or dispose of it by a will in such a wholesale manner as to deprive her of her maintenance. 11. In Narbadabai v. Mahadeo Narayan ((1880) ILR 5 Bom 99) West, J.made the following observations. "The co-ownership of the wife in her husband?s property, if that can property be called ownership at all which involves no independent or coequal powers of disposition or exclusive enjoyment, is not of a kind that accepts the rules applicable to an ownership in the ordinary sense. Her right to maintenance does not depend on it, for the husband is bound to support her, though he should have no property at all. It is rather a latent right coming into operation only when natural affection which usually prompts the mutual acts of members of families, fails of its proper effect, and law has to step in with its rigid rules and imperfect remedies. Unless she be deserted or the family be divided, the wife is strictly dependent as to her so called property. In these events a right to a share of the estate springs up, but till then she has only a right which is completely subordinate. It is not one that she can transfer by individual act, as this is opposed to the theory even of joint ownership, and no substitution is possible of another for herself in the supposed co-ownership with her husband in the common estate. No other could take her place in the joint celebration of the family sacrifices with the family estate or some interest in it must accompany and support. Her right to maintenance is connected with the right called co-ownership with her husband and rests on the same conception of a moral identity arising from the marriage relations but the two are rather co-ordinate rights than one the basis of the other. The husband?s duty of maintaining his wife is one which he cannot owe to another. Her right as against him is one that he cannot transfer to another?. 12. In Lakshmi Devi Amma v. Naganna ( AIR 1925 Mad 757 ) Srinivasa Aiyangar, . The husband?s duty of maintaining his wife is one which he cannot owe to another. Her right as against him is one that he cannot transfer to another?. 12. In Lakshmi Devi Amma v. Naganna ( AIR 1925 Mad 757 ) Srinivasa Aiyangar, . stated the law thus; "It is true that the Hindu Law imposes an obligation on the Hindu husband to support his wife, without any reference to any property or share possessed by him, even as it impose a similar obligation on sons to maintain their mother and father. But when the joint family is possessed of property, a claim by wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligation, but may well be regarded as a suit against the family itself, represented to her husband, through whom alone, so long as he is alive, she has to obtain the relief". ( 12. ) CONSIDERING the obligation on the part of the husband to maintain his wife and daughter and having regard to the concurrent findings of the Court below that the defendant has failed to maintain his wife and in the absence of any perversity in the finding, this Court is of the view that the defendant has not made out a case for interference. The substantial question of law framed is answered in negative. Hence, the second Appeal is dismissed. No costs.