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2018 DIGILAW 2865 (MAD)

Elayaraja v. Rukmani @ Rani

2018-09-11

T.RAVINDRAN

body2018
JUDGMENT 1. In this second appeal, challenge is made to the Judgment and Decree dated 21.09.2004 passed in A.S. No. 37 of 2004 on the file of the Additional District Judge, Tindivanam (S.C.A.S. No. 65 of 2004) Fast Track Court-II, Tindivanam, confirming the Judgment and Decree dated 31.07.2003 passed in O.S. No. 139 of 1997 on the file of the Additional Subordinate Judge, Tindivanam. 2. The second appeal has been admitted on the following substantial questions of law: "(a) Whether the Courts below are right in decreeing the suit for maintenance without framing any particular issue for deciding the quantum to be arrived at. (b) Whether the Courts below are right in granting maintenance, without considering the evidence of PW-1 that she is living in adultery. (c) Whether the Courts below are right in granting maintenance to the first plaintiff, when she herself withdrawn from the matrimonial home without any sufficient cause. (d) Whether the Courts below are right in relying the evidence given without any pleadings. Whether the Courts below are right in relying upon the document Exhibit A.3, when the same was not pleaded in the plaint and document produced along with the plaint." 3. Considering the scope of the issues involved between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. Suffice to state that the suit has been laid by the plaintiffs against the defendant for maintenance. The first plaintiff is the wife. The plaintiffs 2 & 3 are the children of the defendant. Complaining of desertion by the defendant without any reasonable cause and that the defendant had converted himself from Hindu religion to Christianity thereby, the plaintiffs had been forced to take refuge into the parental care of the first plaintiff and as the defendant is liable to provide maintenance to the plaintiffs as per law, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs. 5. 5. The defendant has taken the plea that he is not liable to pay maintenance to the plaintiffs as prayed for and according to him, the plaintiffs had left the matrimonial home without any justifiable cause and further, the defendant would plead that the first plaintiff is leading an unchaste life and according to the defendant, the first plaintiff is having illicit relationship with one Sekar and despite the condemnation of the same by the defendant, the first plaintiff had refused to mend her ways and been persisting in the illicit relationship and thereby, had withdrawn from the company of the defendant without sufficient cause and despite the inclination of the defendant to reunite with the plaintiff, inasmuch as the first plaintiff and the children had left the matrimonial home without any justification, according to the defendant, the plaintiffs are not entitled to obtain the maintenance as prayed for. 6. The defendant would also plead that the first plaintiff had given a consent letter or release deed with reference to not claiming maintenance from the defendant pursuant to the panchayat decision and therefore, the plaintiffs are not entitled to claim maintenance from him. 7. Based on the appreciation of the materials placed on record, the Courts below had accepted the plaintiffs' case and thereby, granted the relief of maintenance in favour of the plaintiffs. Impugning the same, the present second appeal has been laid by the defendant. 8. The marriage between the first plaintiff and the defendant is not in dispute. According to the plaintiffs, the defendant had deserted them without any sufficient cause and hence, according to the plaintiffs, the defendant should be directed to pay maintenance to them as prayed for. Per contra, the defendant imputing un-chastity on the part of the first plaintiff that she is having illicit relationship with one Sekar and despite the condemnation of the same by the defendant, inasmuch as the first plaintiff had not mended her ways and not lived with him, according to the defendant, the plaintiffs are not entitled to the relief of maintenance from him. As regards the defence version that the first plaintiff was having illicit relationship with one Sekar, the Courts below had rightly held that with reference to the said allegations, the defendant has failed to place any acceptable and reliable materials, accordingly, it is found that the abvoesaid plea of the defendant projected against the plaintiffs' case cannot be accepted in any manner. In particular, the determination of the abovesaid point against the defendant by the Courts below is found to be on the proper appreciation of the materials placed on record. 9. It is contended by the defendant that on account of continuous misunderstanding between the parties, the panchayat was held and in the said panchayat, the defendant had settled some amount in favour of the plaintiffs and therefore, following the same, the plaintiffs are not entitled to claim any maintenance from the defendant. In this connection, reliance is placed upon Ex.B2, the release deed or consent letter said to have been executed by the first plaintiff in favour of the defendant following the panchayat intervention. Now according to the plaintiffs, the abovesaid document had come to be concocted by the defendant by taking advantage of the obtainment of the first plaintiff's signature in the blank paper and it is the case of the plaintiffs that no such Panchayat had been convened and no amount had been parted by the defendant in their favour and the first plaintiff had not executed the release deed in favour of the defendant forfeiting her claim for maintenance from the defendant. As rightly determined by the Courts below, if really any panchayat had been convened between the parties, to sustain the said case, the defendant would have examined the panchayatars with reference to the same. Further, if really a document had been secured as the out come of the panchayat intervention, as rightly contended, the said document would have contained the signature of the plaintiff as well as the defendant and also the panchayatars. But strangely, in Ex.B2, the signature of the first plaintiff is found and the same is also not shown to be attested by any of the panahcyats said to have been present in the panchayat. Even the defendant's signature is found to have not been secured in the said document. This creates strong doubt in the genuineness of Ex.B2. But strangely, in Ex.B2, the signature of the first plaintiff is found and the same is also not shown to be attested by any of the panahcyats said to have been present in the panchayat. Even the defendant's signature is found to have not been secured in the said document. This creates strong doubt in the genuineness of Ex.B2. When the plaintiffs have disputed the convenement of any panchayat between them to solve the misunderstanding and when PW-2 examined, with reference to the Panchayat, is unable to state clearly that he was present throughout during the alleged panchayat and when PW-2 is not a signatory to Ex.B2, the Courts below had rightly discarded the evidence of PW-2 and when Ex.B2 is not shown to be the outcome of any panchayat's determination, the same cannot be the basis for holding that the plaintiffs had agreed to forfeit the claim of maintenance from the defendant and therefore, the defendant cannot be allowed to rely upon Ex.B2 for defeating the claim of maintenance. 10. As abovenoted, the defendant had imputed unchastity on the part of the first plaintiff. As regards the said allegation, he has failed to establish the same. It is found that there has been misunderstanding between the parties in their matrimonial life. Accordingly, it is seen that the plaintiffs are unable to live with the defendant under the same roof. Now, according to the plaintiffs, the defendant had deserted them without any justifiable cause. Per contra, it is the contention of the defendant that the plaintiffs had withdrawn from his society without sufficient cause. However, when it is found that the defendant had imputed un-chastity on the part of the first plaintiff and failed to substantiate the same, as rightly putforth the abovesaid act of the defendant alone would be sufficient on the part of the first plaintiff and the children to live away from the defendant. Accordingly, it is found that on account of misunderstanding between the parties one way or the other, particularly, when it is found that the defendant is found to have been making wild allegations against the first plaintiff challenging her character, without any basis, on that ground alone, in my considered opinion, the first plaintiff is justified in withdrawing from the society of the defendant and live separately. 11. 11. The defendant being the husband is bound to maintain his wife, the first plaintiff and his children. Accordingly, it is seen that though the defendant would claim that the second child born out of the wedlock is not born to him but when the said case of the defendant has not been established and on the other hand, when it is found that the second child has been born to the parties during the subsistence of their wedlock and as abovenoted, the defendant has failed to establish any illicit relationship between the plaintiff and Sekar and the execution of Ex.B2 release deed has also not been established by the defendant, accordingly, it is seen that the defendant as per law is bound to maintain the plaintiffs and in such view of the matter, considering the status of the defendant and the income received by him out of his avocation and his duty to maintain the plaintiffs, it is seen that the Courts below are justified in granting the relief as prayed for by the plaintiffs and no interference is called for with reference to the same. 12. The counsel for the plaintiffs placed reliance upon the decisions Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others, (2005) 3 SCC 636 and the decision of the apex Court dated 19.04.2017 in Civil Appeal No. 5369 of 2017, Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee Nandy, seeking for enhanced claim of maintenance. If at all, the plaintiffs are entitled to seek enhanced claim of maintenance, it is always open to them to seek appropriate remedies in the appropriate forum as per law. 13. Rita Dey Chowdhury Nee Nandy, seeking for enhanced claim of maintenance. If at all, the plaintiffs are entitled to seek enhanced claim of maintenance, it is always open to them to seek appropriate remedies in the appropriate forum as per law. 13. In the light of the above discussions, the defendant has failed to establish that the first plaintiff has withdrawn from the matrimonial home without sufficient cause and on the other hand, the materials placed on record would go to show that the first plaintiff has a justifiable cause to withdraw from the society of the defendant and furthermore, when the defendant has failed that the plaintiffs had forfeited their claim of maintenance by way of Ex.B2 and when the factum of the execution of Ex.B2 at the intervention of the panchayat has not been established by the defendant and when it is found that the defendant is liable to pay the maintenance to the plaintiffs, considering the abovesaid factors and the appreciation of the materials placed on record in the right perspective, it is found that the Courts below had rightly granted the relief in favour of the plaintiffs and accordingly, the same does not warrant any interference in this second appeal. In my considered opinion, no substantial question of law is found to be involved in the second appeal. Be that as it may, the substantial questions of law involved in this second appeal are accordingly, answered in favour of the plaintiffs against the defendant. 14. For the reasons aforestated, the second appeal fails and accordingly, is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.