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2012 DIGILAW 261 (MAD)

S. S. Muthuswamy v. Maniammal

2012-01-12

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Defendant (Husband) has preferred this Second Appeal as against the Judgment and Decree dated 06.08.1998 in A.S.No.39 of 1997 passed by the Learned District Judge, Coimbatore in confirming the Judgment and Decree dated 14.12.1994 in O.S.No.1639 of 1992 passed by the Learned Additional District Munsif, Coimbatore. 2. The First Appellate Court, namely, the Learned District Judge, Coimbatore, while passing the Judgment in A.S.No.39 of 1997 on 06.08.1998, has inter alia held that the Appellant/Defendant (Husband) has ignored the Respondent/Plaintiff (Wife) and has married one Thulasimani and through her, has two children and has been residing separately with them. Further, the Appellant/Defendant (Husband) is liable to maintain the Respondent/Plaintiff (Wife) and has come to a clear conclusion that the Appellant/Defendant should pay a sum of Rs.300/-for the food expenses of the Respondent/Plaintiff (Wife) and further for her residence and clothing, he ought to pay a sum of Rs.200/- per month and he should pay a sum of Rs.300/- towards medical expenses per month and in all, the Appellant/Defendant should pay a sum of Rs.800/-per month, to the Respondent/Plaintiff and the said conclusion arrived at by the trial Court need not be interfered with and resultantly, dismissed the Appeal with costs. 3. Earlier, before the trial Court in the main suit, one to three issues have been framed for trial. On behalf of the Respondent/Plaintiff, witness P.W.1, Plaintiff has been examined and Exs.A1 to A7 have been marked on the side of the Appellant/Defendant and witnesses D.Ws.1 and 2 have been examined and Exs.B1 and B2 have been marked. 4. 3. Earlier, before the trial Court in the main suit, one to three issues have been framed for trial. On behalf of the Respondent/Plaintiff, witness P.W.1, Plaintiff has been examined and Exs.A1 to A7 have been marked on the side of the Appellant/Defendant and witnesses D.Ws.1 and 2 have been examined and Exs.B1 and B2 have been marked. 4. The trial Court, after scrutinising the oral and documentary evidence produced by the parties, has come to a consequent conclusion that the Appellant/Defendant has retired from Viscose Company and also at the time of his retirement, he has received a big sum and also he has been in possession of lands, which have been admitted and therefore, awarded per month a sum of Rs.300/-towards food expenses; and for residence and other clothing expenses, per month granted a sum of Rs.200/-and towards medical expenses, awarded a sum of Rs.300/-per month (in all a sum of Rs.800/- per month) and accordingly, passed a decree with costs directing the Appellant/Defendant (Husband) to pay the aforesaid amount from the date of filing of the suit till life time of the Respondent/Plaintiff (Wife) and also created a charge in respect of the suit properties. 5. It is not in dispute that the Respondent/Plaintiff is the wife of the Appellant/Defendant. D.W.1 (Appellant/Defendant) has deposed that through Thulasimani, he has two male children and also that he has been maintaining them. The Respondent/Plaintiff has come out with a case that the Appellant/Defendant (Husband) has married one Thulasimani 15 years ago. The Respondent/Plaintiff got married to the Appellant/Defendant 25 years ago as per Hindu rites and customs. The Respondent/Plaintiff (Wife) through the Appellant/Defendant has two daughters namely, Amudha @ Selvi and Sampoornam @ Thilakavathi. 6. The stand of the Respondent/Plaintiff (Wife) is that the Appellant/Defendant has been living with his second wife Thulasimani and through her, the Appellant/Defendant has got two sons. The Appellant/Defendant, at the time of marriage of his first daughter on 19.02.1986, has given two acres of land to her as settlement to herself and her husband. 7. The Respondent/Plaintiff is living along with her first daughter in the land given under the Settlement Deed, wherein, there is a house bearing No.6/272A. The Appellant/Defendant, at the time of marriage of his first daughter on 19.02.1986, has given two acres of land to her as settlement to herself and her husband. 7. The Respondent/Plaintiff is living along with her first daughter in the land given under the Settlement Deed, wherein, there is a house bearing No.6/272A. In the Plaint, the Respondent/Plaintiff (Wife) has averred that the Appellant/Defendant (Husband) has refused and neglected to maintain her and therefore, she issued a lawyer's notice dated 22.06.1992, calling upon the Appellant/Defendant (Husband) to pay her the maintenance. The Appellant/Defendant has issued a reply to the said notice of the Respondent/Plaintiff's lawyer on 07.07.1992, wherein, it is mentioned that the Appellant/Defendant has provided food, clothing and shelter to the Respondent/Plaintiff. In short, the Appellant/Defendant has taken a stand that he has not refused or neglected to maintain the Respondent/Plaintiff (Wife) at any point of time. Further, she is only residing with him in the same house. In the plaint, the Respondent/ Plaintiff (Wife) has sought a maintenance amount of Rs.800/-per month to be paid to her by the Appellant/Defendant (Husband) and also she sought for creation of a charge over the properties of the Appellant/Defendant. 8. According to the Respondent/Plaintiff (Wife), she is a diabetic patient over ten years and for her medical treatment and expenses, she requires at least Rs.300/- per month. The income of the Appellant/Defendant (Husband) has been not less than Rs.4,000/-per month. Therefore, she requires Rs.300/- per month towards her food and Rs.1,200/-per half year towards her clothing and shelter. 9. The Appellant/Defendant(Husband), in his Written Statement, has taken a plea that the Respondent/Plaintiff (Wife) is living with him even today and therefore, she is unlawfully claiming maintenance. Furthermore, he is always maintaining the Respondent/ Plaintiff (Wife) by providing food, clothes and shelter. Also, he has denied that she married Thulasimani 15 years ago and has two children. 10. The case of the Appellant/Defendant (Husband) is that the Respondent/Plaintiff (Wife) never resided with her first daughter at any point of time. The Appellant/Defendant (Husband) is not earning an income of Rs.4,000/- per month and is not a well to do person. 11. As far as the present case is concerned, the Appellant/Defendant (Husband) as D.W.1, in his evidence, has candidly admitted that he is living with one Thulasimani and through her, he has two sons. The Appellant/Defendant (Husband) is not earning an income of Rs.4,000/- per month and is not a well to do person. 11. As far as the present case is concerned, the Appellant/Defendant (Husband) as D.W.1, in his evidence, has candidly admitted that he is living with one Thulasimani and through her, he has two sons. In law, when a person lives with his wife in the same house, and if he lives with another lady, then the legally wedded wife is entitled to get herself separated from the Appellant/Defendant and is entitled to claim maintenance. Even in Ex.A3, the Respondent/Plaintiff's lawyer notice dated 22.06.1992 addressed to the Appellant/Defendant (Husband), it is mentioned that the Respondent/Plaintiff (Wife) is suffering from Diabetic ailment. However, in Ex.A5, Reply notice dated 07.07.1992 given by the Appellant/Defendant (Husband), it is mentioned that the Respondent/Plaintiff (Wife) is living with him. 12. P.W.1 (Respondent/Wife), in her evidence, has stated that her eldest daughter got married eight years ago and the Appellant/Defendant (Husband) has given a two acre land to the first daughter for the purpose of enjoyment of the said land and in the two acre garden land, there is a cattle shed residence and in that house, in one portion, she is residing with her daughter and in another portion, the Appellant/Defendant (Husband) is residing. 13. It is to be borne in mind that the Appellant/Defendant has retired from service from Viscose Company and also at the time of his retirement, he received a sizeable sum and further, he has been in possession of land. When the Respondent/Plaintiff (Wife) is lawfully wedded to the Appellant/Defendant (Husband) and when the Respondent/Plaintiff is the first wife, then the Appellant/Defendant (Husband) cannot neglect her or refuse to maintain her and live with his second wife Thulasimani and her children. 14. The Respondent/Plaintiff (Wife) has to keep her body and soul together for the purpose of leading a daily life till her lifetime. Therefore, she requires money for her succour. 14. The Respondent/Plaintiff (Wife) has to keep her body and soul together for the purpose of leading a daily life till her lifetime. Therefore, she requires money for her succour. Considering the fact that the Appellant/Defendant (Husband) has retired from Viscose Company and at the time of his retirement has received a big amount and also in possession of lands, this court comes to an irresistible conclusion that a sum of Rs.300/- ordered by the trial Court to be paid by the Appellant/Defendant (Husband) to the Respondent/Plaintiff (Wife) towards her food expenses, a sum of Rs.200/-per month for her clothing and residential expenses, and a sum of Rs.300/- per month towards her medical expenses, aggregate in all, a sum of Rs.800/-being awarded to the Respondent/Plaintiff (Wife) from the date of filing of the plaint till her life time cannot be said to be an excessive or arbitrary one and the said sum of Rs.800/- in all, ordered to be paid to the Respondent/Plaintiff (Wife) by the Appellant/Defendant (Husband) by the trial Court and as confirmed by the Appellate Court do not require any interference in the hands of this court. Further, the trial Court as well as the Appellate Court have rightly created a charge in respect of the suit properties towards payment of maintenance decree. 15. In short, there are sufficient/ adequate materials available on record for the trial Court as well as the Appellate Court to come to a conclusion while awarding a sum of Rs.800/- in all, as maintenance amount to be paid by the Appellant/Defendant (Husband) to and in favour of the Respondent/Plaintiff (Wife). As such, the Judgment and Decree of the trial Court as well as the Appellate Court do not suffer from any material irregularity or patent illegality. Accordingly, the substantial question of law is answered against the Appellant/Defendant (Husband). 16. 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 06.08.1998 made in A.S.No.39 of 1997 are confirmed by this court for the reasons assigned in this Appeal.