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2012 DIGILAW 216 (MAD)

P. Raju v. Nallammal

2012-01-11

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Defendant has projected this Second Appeal as against the Judgment and Decree dated 14.12.1998 made in A.S.No.2 of 1998 passed by the Learned II Additional District Judge, Erode in partly modifying the Judgment and Decree dated 08.08.1997 in O.S.No.1010 of 1995 passed by the Learned District Munsif, Erode. 2. Before the trial Court, the Respondent/Plaintiff (Wife) has filed a suit in O.S.No.1010 of 1995 claiming a sum of Rs.500/-as monthly maintenance to be paid by the Appellant/Defendant (Husband) and further to create a charge on the plaint schedule property in respect of the monthly maintenance amount to be awarded by the trial Court. 3. In the main suit, during the trial of the case, one to three issues have been framed for trial. On the side of the Respondent/Plaintiff (Wife), witness P.W.1 has been examined and Exs.A1 to A3 have been marked. On the side of the Appellant/Defendant (Husband), witnesses D.Ws.1 to 3 have been examined and Ex.B1 has been marked. 4. The Trial Court, after analysing the oral and documentary evidence produced by the parties (which is available on record) and after appreciating the same, directed the Appellant/Defendant to pay a sum of Rs.500/-towards monthly maintenance to the Respondent/Plaintiff on 5th of every succeeding month through Money Order and has rejected the relief of charge Decree being passed in respect of the suit property as prayed for by the Respondent/Plaintiff and accordingly, passed a Decree to that effect. 5. Aggrieved against the Judgment and Decree dated 08.08.1997 made in O.S.No.1010 of 1995 passed by the trial Court, the Appellant/Defendant (Husband) has preferred an Appeal in A.S.No.2 of 1998 on the file of the First Appellate Court viz., Learned II Additional District Judge, Erode, as an aggrieved person. 6. The First Appellate Court viz., Learned II Additional District Judge, Erode, after contest, has allowed A.S.No.2 of 1998 on 14.12.1998 in part, by directing the Appellant/Defendant to pay a sum of Rs.400/-towards monthly maintenance to the Respondent/Plaintiff (Wife) from 01.01.1995 till the life time of the Respondent/Plaintiff (Wife) and towards the payment of the said maintenance amount and has created a charge Decree in respect of the suit property and thereby allowed the Appeal in the above terms with costs. 7. 7. Being dissatisfied with the Judgment and Decree of the First Appellate Court in A.S.No.2 of 1998, dated 14.12.1998, the Appellant/Defendant (Husband) has preferred the Second Appeal before this Court. 8. At the time of admission of the Second Appeal, this court has framed the following substantial question of law for determination : "In the absence of an independent appeal or a cross objection, is the Lower Appellate Court right in law in granting the relief in favour of the plaintiff for the first time in the appeal?" The Contentions, Discussions and Findings on Substantial Question of Law : 9. According to the Learned Counsel for the Appellant/Defendant (Husband), both the Courts below failed to appreciate the fact that the Respondent/Plaintiff (Wife) lived with the Appellant/Defendant (Husband) only for six months and subsequently for the past 38 years, she has been living away from her Husband. 10. It is the contention of the Learned Counsel for the Appellant/Defendant that the Appellant/Defendant (Husband) has become old and he has been permanently incapacitated for earning income due to the damage suffered to his spinal cord in an accident. 11. The Learned Counsel for the Appellant/Defendant (Husband) urges before this Court that the Appellant/Defendant (Husband) has produced Ex.B1-Sale Deed, dated 31.05.1996 in favour of the Respondent/Plaintiff (Wife), which would clearly point out that the Respondent/Plaintiff (Wife) has purchased an immovable property worth more than Rupees One Lakh, after filing of the suit. 12. The stand taken by the Appellant/Defendant (Husband) is that after a lapse of so many years and that too when the Respondent/Plaintiff (wife) has left the Appellant/Defendant, she has no legal right to claim maintenance from him at the fag end of his life. 13. Yet another submission made on behalf of the Appellant/Defendant (Husband) is that the First Appellate Court has failed to appreciate that the Respondent/Plaintiff (Wife) without filing a Cross-Appeal is not entitled to canvass or question the findings of the trial Court. 14. The Learned Counsel for the Appellant/Defendant projects the legal plea that in the instant case on hand, there is no evidence adduced in order to substantiate the case of the Respondent/Plaintiff. As such, it is improper for the First Appellate Court to create a charge over the Plaint Schedule property, inasmuch as there is no documentary proof to establish that the Plaint Schedule Property belongs to the Appellant/Defendant (Husband). 15. As such, it is improper for the First Appellate Court to create a charge over the Plaint Schedule property, inasmuch as there is no documentary proof to establish that the Plaint Schedule Property belongs to the Appellant/Defendant (Husband). 15. The Learned Counsel for the Appellant/Defendant contends that the Respondent/Plaintiff (Wife), in law, cannot challenge the Decree of the trial Court passed in the main Suit without filing an Appeal or Cross-Objection and also that the Respondent/Plaintiff has no right to challenge the finding favourable to the Appellant/Defendant without filing a Cross-Appeal. 16. That apart, it is the submission of the Learned Counsel for the Appellant/Defendant (Husband) that the ingredients of Order 41 Rule 22 of the Code of Civil Procedure enjoins the contingent right further to press the Cross-Objection for decision only when the Court assumes the jurisdiction to decide the appeal. Lastly, it is the contention of the Learned Counsel for the Appellant/Defendant that as an ordinary Rule, in the absence of a Cross-Appeal or Cross-Objection by the Respondent/Plaintiff, the Appellate Court has no power to disturb the Decree of the trial Court passed in the suit so far as it is in the Appellant/Defendants favour. 17. Per contra, it is the submission of the Learned Counsel for the Respondent/Plaintiff (Wife) that the First Appellate Court viz., II Additional District Judge, Erode has taken into consideration the entire oral and documentary evidence available on record and has also taken note of the facts and circumstances of the case in an integral fashion and has come to a consequent conclusion that the Appellant/Defendant is liable to pay a monthly sum of Rs.400/- towards the maintenance to the Respondent/Plaintiff (Wife) till her lifetime and for the said amount of maintenance, has created a charge in respect of the Plaint Schedule Property and accordingly, modified the Appeal in part and passed a Decree thereto with costs. 18. P.W.1 (Respondent/Plaintiff), in her evidence has deposed that the marriage between her and the Appellant/Defendant (Husband) has taken place 37 years ago and for the past 4 years, she and her Husband (Appellant/Defendant) are not living unitedly and she does not remember as on what date she has separated from her Husband. 19. 18. P.W.1 (Respondent/Plaintiff), in her evidence has deposed that the marriage between her and the Appellant/Defendant (Husband) has taken place 37 years ago and for the past 4 years, she and her Husband (Appellant/Defendant) are not living unitedly and she does not remember as on what date she has separated from her Husband. 19. It is the further evidence of P.W.2 that her Husband i.e. the Appellant/Defendant has re-married for the second time and she does not know the age of the children through the second wife and they are residing at Ramanadhapudur and further the Appellant/Defendant through his second wife has a son and a daughter, who are not married and the house they are residing is an ancestral property and that her Appellant/Defendant (Husband) has not purchased the property. 20. The evidence of P.W.1 is to the effect that (to a suggestion), she denied that she has left the Appellant/Defendant (Husband) and it is not correct to state that after her separation from the Appellant/Defendant (Husband), she developed an illegal intimacy and has been living with one Marappa Gounder. Further, it is not correct to state the Appellant/Defendant (Husband) has no income and it is also denied that because of his ill health, he is not going to any work and is not in a position to do any work. 21. The Appellant/Defendant (Husband), in his evidence, has deposed that he has lived with the Respondent/Plaintiff (Wife) after marriage only for two months and that the Respondent/Plaintiff (Wife) after her marriage, during the third month has run away from him and in the Panchayat, he has divorced the Respondent/Plaintiff (Wife) and it is incorrect to state that he has been living with the Respondent/Plaintiff (Wife) in his Village for the past four to five years and further, he has married one Valliammal and through her, he has a daughter aged about 20 years and a son aged about 15 years and he has not beat the Respondent/Plaintiff and has not harassed her. 22. 22. D.W.1, in his evidence proceeds to state that he is doing the work of a Coolie and when he goes for Coolie work daily, he used to earn Rs.50/- or Rs.100/- and while doing Stone Work, a Stone fell on his hip and therefore, he has not been in a position to work and it is wrong to state that he gets an income of Rs.3000/-per month. Ex.B1, is the Sale Deed, dated 31.05.1996 which is in the name of the Respondent/Plaintiff (Wife). 23. D.W.1 in his cross-examination has deposed that the Respondent/Plaintiff (Wife) is his sisters daughter and he has kept acquaintance with the Respondent/Plaintiff (Wife) through her child and therefore has got married to the Respondent/Plaintiff (Wife) and further per month, he incurs Rs.300/-for his house and his daughter is going to job and from that income, she is maintaining him. 24. D.W.2, in his evidence, has deposed that the Appellant/Defendant through Valliammal has one daughter, aged 20 years and a son, aged 16 years and that the Respondent/Plaintiff is not living with the Appellant/Defendant (Husband) and the Respondent/Plaintiff has been living with one Marappa Gounder, who is no more now and that the Appellant/Defendant (Husband) is doing coolie work . 25. D.W.2, (in his cross-examination) as regards divorce problem between the Appellant/Defendant and the Respondent/Wife, has deposed that in his presence, no Panchayat has taken place and that the Appellant/Defendant is earning a daily income of Rs.50/- by doing Coolie job and his daughter is also earning income through the Coolie job and he does not know when the Appellant/Defendant got married for the second time. 26. D.W.3 in his evidence has deposed that the Respondent/Plaintiff has purchased the property as per Ex.B1-Sale Deed, dated 31.05.1996, in which he has signed as a witness. 27. If an individual pleads customary divorce, he must allege and prove the incident of custom as per the decision reported in AIR 1958 AP 611 (Rapeti Bulli vs. Rapeti Nakaraju). 28. It is to be borne in mind that a custom should be proved by an unambiguous and clear cut evidence. Also, a custom in derogation of general law is construed strictly. Further, a custom may be proved properly by general evidence as to its existence by members of tribe or family who would be naturally aware of its existence. 29. It is to be borne in mind that a custom should be proved by an unambiguous and clear cut evidence. Also, a custom in derogation of general law is construed strictly. Further, a custom may be proved properly by general evidence as to its existence by members of tribe or family who would be naturally aware of its existence. 29. It is to be noted that though the Appellant/Defendant in the instant case has come out with a plea that he has divorced the Respondent/Plaintiff (Wife) before the Panchayat, in the absence of any acceptable, tangible evidence to the satisfaction of this court, the plea projected on behalf of the Appellant/Defendant that the Appellant/Defendant has divorced the Respondent/Plaintiff (Wife) before the Panchayat is not accepted by this court. Instead, the said plea is outwardly rejected by this court. 30. In regard to the plea of the Appellant/Defendant that since he has sustained injury on his spinal cord on account of the accident, while doing the Stone work and therefore, he is not in a position to earn, this court of the considered view that making of an averment of that sort will not in any way aid the Appellant/Defendant to say that he is unable to earn on account of the injury sustained by him. It cannot be again said that the Appellant/Defendant has got married for the second time to one Valliammal and through her, he has got a Daughter, aged 20 years and a Son, aged 16 years. In the absence of proof, with regard to the plea of divorce that has taken place allegedly before the Pancyayat, this court holds that the Respondent/Plaintiff continues to be the Wife of the Appellant/Defendant. 31. The word maintenance is defined under The Hindu Adoptions and Maintenance Act, 1956. The grant of maintenance to a Wife by a Court of Law is not a luxury. The maintenance and support should be according to the standard of the parties, wealth and environment, which they are accustomed to in their marital status. As a matter of fact, right to claim maintenance by Wife is her personal right. 32. The grant of maintenance to a Wife by a Court of Law is not a luxury. The maintenance and support should be according to the standard of the parties, wealth and environment, which they are accustomed to in their marital status. As a matter of fact, right to claim maintenance by Wife is her personal right. 32. The fact that the Husband was having a large family to support out of his moral obligation is no ground for him to disown his legal responsibility to prove maintenance to his legally wedded wife as per the decision reported in AIR 2006 (NOC) 1025 (Manata Debnath vs. Mohanlal Debnath). 33. It is the duty of the Appellant/Defendant as a husband to maintain his legally wedded wife, viz. the Respondent/Plaintiff. When the first marriage of the Respondent/Plaintiff is in force, the Appellant/Defendant has married one Valliammal as second Wife and has got two issues, one male and the other female, who are now major. By any means, it is the duty of the Appellant/Defendant (Husband) to maintain the Respondent/Wife. Though an allegation against the Respondent/Wife has been made by the Appellant/Defendant (Husband) on the basis that she has been having an illicit affair (with one Marappa Gounder, who is no more now), the said submission has not been proved to the subjective satisfaction of this court. Though D.W.2 has deposed in his evidence that the Respondent/Plaintiff has been living with one Marappa Gounder during his life time and that she is not living with the Appellant/Defendant, since his evidence is self-interested and unilateral, the same is not accepted by this court. To put it differently, the evidence of D.W.2 to the effect that the Respondent/Plaintiff (Wife) has been living with one Marappa Gounder is unworthy of credence. 34. Admittedly, the Appellant/Defendant is residing with the second wife in Ramanathapudur along with his two children born through his second wife, Valliammal and that itself is a candid proof that the Appellant/Defendant has not maintained the Respondent/Plaintiff (Wife). Therefore, it is crystal clear that the Appellant/Defendant has to pay the monthly maintenance amount to the Respondent/Plaintiff (Wife), so as to enable her keep her body and soul together. The Appellant/Defendant (Husband) cannot be relieved of the obligation not to maintain the Respondent/Plaintiff, being his lawfully wedded wife. 35. Therefore, it is crystal clear that the Appellant/Defendant has to pay the monthly maintenance amount to the Respondent/Plaintiff (Wife), so as to enable her keep her body and soul together. The Appellant/Defendant (Husband) cannot be relieved of the obligation not to maintain the Respondent/Plaintiff, being his lawfully wedded wife. 35. Considering the fact that the Appellant/Defendant (Husband) has been earning a sum of Rs.50/- per day as Coolie, as spoken to by D.W.2 and although the Appellant/Defendant has come out with a plea that after Spinal Cord injury, he has not been in a position to work and earn, this court is of the considered view that the First Appellate Court, at the time of delivering a judgment in appeal, has opined that without a minimum of Rs.50/-daily, one cannot lead the life and further, as the Respondent/Plaintiff has a house to reside and also the Appellant/Defendant has been aged around 62 years (as informed before the First Appellate Court) and further, he has second wife and children, the First Appellate Court has held that monthly maintenance of Rs.400/- is sufficient to be paid to the Respondent/Plaintiff (Wife) by the Appellant/Defendant (Husband) and accordingly, directed the Appellant/Defendant to pay a sum of Rs.400/- per month from 01.01.1995 to the Respondent/Plaintiff till her life time and has also created a charge in respect of the Plaint Schedule Property. The said findings arrived at by the First Appellate Court are quite reasonable and they do not suffer from any perversity, in the considered opinion of this court. 36. Filing of Cross-Objection is optional in law and the same is not mandatory. It is not obligatory for a Respondent to file Cross-Objection against the adverse findings of a lower Court. 37. The benefit of Order 41 Rule 33 of the Code of Civil Procedure is available to a person not appealing or not appealed, as opined by this Court. 38. The Policy of Order 41 Rule 33 of the Code of Civil Procedure is to enable the Appellate Court to do justice to all parties whether before it or not. The Court of Laws wide discretion should not be refused on technicalities. 39. The powers of an Appellate Court under Order 41 Rule 32 and 33 of the Code of Civil Procedure are co-exclusive with the powers of the trial Court. 40. The Court of Laws wide discretion should not be refused on technicalities. 39. The powers of an Appellate Court under Order 41 Rule 32 and 33 of the Code of Civil Procedure are co-exclusive with the powers of the trial Court. 40. Dealing with the plea of the Appellant/Defendant that in the absence of an Appeal being preferred by the Respondent/Plaintiff, when her plea for charge decree in respect of the property has been negatived by the trial Court, the Appellate Court has passed a charge decree in the appeal filed by the Appellant/Defendant (husband), this court pertinently points out that the aim of the Rule viz., Order 41 Rule 33 is to empower the First Appellate Court to do complete justice between the parties. As a matter of fact, Order 41 Rule 33 envisages that the First Appellate Court has to pass any Decree or Order, which ought to have been made and to make such further Order or Decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the Decree; and such party or parties may not have filed an Appeal. 41. In short, no hard and fast Rule can be formulated as to the circumstances, in and by which the Appellate Court can exercise its power as per Order 41 Rule 33 of the Code of Civil Procedure. The ordinary Rule is that a Judgment/Decree is binding on all the parties to the proceedings, until it is set aside by an appropriate/competent forum. By and large, the Appellate Court ought not to vary or reverse the Decree/Order in favour of a litigant, who has not filed any appeal and this Rule rules the Roost, notwithstanding the ingredients of Order 41 Rule 33 of the Code of Civil Procedure. In exceptional matters/cases, Order 41 Rule 33 enjoins the Appellate Court to pass any such Decree/Order which should have been passed even if such Decree would be in favour of all parties/litigants, who have not filed any appeal. Undoubtedly, the discretionary power as per Order 41 Rule 33 is not to be refused/declined solely on the ground that a certain party/litigant has not preferred any appeal. Undoubtedly, the discretionary power as per Order 41 Rule 33 is not to be refused/declined solely on the ground that a certain party/litigant has not preferred any appeal. If the ends of justice so require and also the situation so warrants, the Court of Law has the right to mould the relief by passing appropriate Decree or Order, which ought not to have been passed, despite the fact that the opposite side has not filed any appeal or cross-objection. To put it precisely, the ambit of power as per Order 41 Rule 33 is so wide covering any determination of issue not only between the Appellant and the Respondent, but also between the Respondents and the co-Respondents. 42. The term as the case may require employed in Order 41 Rule 33 are of wider connotation to enable the Appellate Court to pass an Order or Decree to meet the ends of justice. The proviso of Order 41 Rule 33 equally applies to the Cross-Objection as well. The term parties also include parties to the suit notwithstanding the fact they may not be the parties to the appeal proceedings also. The term which ought in law to have been passed, means which ought to have been passed in accordance with law and if an Appellate Court is of the view that any Decree which ought in law to have been passed was in fact, not been passed by the trial Court, it may pass or make any further or other Decree or Order, as the justice of the case may require. 43. Viewed in this perspective, this court opines that the ingredients of Order 41 Rule 33 and Rule 4 are mainly intended to counter the situation whether there are several Defendants who are equally aggrieved by a Decree on the ground to all of them and only one of them challenges the Decree by an Appeal in his own right. 44. Looking at from any angle, this court comes to an irresistible conclusion that the First Appellate Court viz., the Learned II Additional District Judge, Erode has come to a right conclusion that the Appellant/Defendant (Husband) should pay a monthly maintenance of Rs.400/- to the Respondent/Plaintiff (Wife) and accordingly, passed a charge Decree in respect of the suit property and the said findings of the First Appellate Court do not warrant any interference in the hands of this court. Accordingly, the substantial question of law is answered against the Appellant/Defendant. 45. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court dated 14.12.1998 made in A.S.No.2 of 1998 are confirmed by this court for the reasons assigned in this Appeal.