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2022 DIGILAW 2915 (MAD)

Ashok alias G. Ashokan v. Poongkodi

2022-08-25

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This First Appeal is filed under Section 19 of the Family Courts Act, 1984, against the judgment and decree dated 27.07.2020 made in O.S.No.7 of 2017 on the file of the Family Court, Salem.) V.M. Velumani, J. 1. This Appeal Suit is filed against the judgment and decree dated 27.07.2020 made in O.S.No.7 of 2017 on the file of the Family Court, Salem. 2. The respondents are the plaintiffs and appellant is defendant in O.S.No.7 of 2017 on the file of the Family Court, Salem. The respondents filed the said suit, claiming a sum of Rs.15,000/- per month as maintenance for the 1st respondent till her life time and Rs.10,000/- to the 2nd respondent/minor daughter till attaining majority or till getting married; also to pay past maintenance of Rs.3,00,000/- from March 2016 to February 2017 and to create charge over 1st item of the suit property scheduled in the plaint. The appellant earlier filed F.C.O.P.No.166 of 2015 on the file of the Family Court, Salem, against the 1st respondent, seeking decree of divorce for dissolution of marriage. In the said petition, he has made various allegations of cruelty meted out by the 1st respondent. The 1st respondent filed counter statement and denied various allegations made by the appellant. The 1st respondent, after two years of filing F.C.O.P. by the appellant, filed the present suit. The 1st respondent has made very same averments and allegations made by her in the counter statement and craved leave of this Court to treat the same as part and parcel of the plaint. In addition to the said averments, the 1st respondent has stated that appellant is partner of the joint family business of making Silver Anklets and is owning properties purchased from and out of the joint family business in his name and in the name of his father and brothers. The 1st respondent has no independent income to maintain herself and the 2nd respondent/minor daughter. The appellant is capable of paying maintenance to the respondents and claimed a sum of Rs.15,000/- for the 1st respondent till her life time and Rs.10,000/- to the 2nd respondent till she attains majority or till her marriage. The respondents also prayed to create charge over the 1st item of the suit property scheduled in the plaint. 3. The appellant filed written statement. The respondents also prayed to create charge over the 1st item of the suit property scheduled in the plaint. 3. The appellant filed written statement. In the written statement, he made very same averments and allegations made in the F.C.O.P. filed by him. In addition to the said averments and allegations, the appellant has stated that the 1st item of the property belongs to his father, who purchased the said property in the name of the appellant. The appellant has already transferred the same in the name of the purchaser. The appellant is not aware of the other properties mentioned in the plaint and those properties are not under the control or command of the appellant. The appellant is not earning a sum of Rs.80,000/- per month as alleged by the respondents. The appellant is jobless. He is depending upon others even for his basic needs. The 1st respondent is an affluent person and is capable of maintaining herself and minor daughter. It is the affluent person who has to maintain other spouse. The appellant is only engaged as a labour in the Silver Pattarai work. The respondents, without knowing the concept of family status, has made false averments. The respondents are not entitled for any relief of charge against the suit properties which belong to his father. The appellant is not owning any property either movable or immovable. The appellant is not having sufficient means to pay the maintenance to the respondents and prayed for dismissal of the suit. 4. Before the learned Judge, the 1st respondent examined herself as P.W.1 and marked 12 documents as Exs.A1 to A12. The appellant examined himself as D.W.1, examined one Saravanan as D.W.2 and marked 25 documents as Exs.B1 to B25. 5. The learned Judge considering the pleadings, oral and documentary evidence, held that the appellant, as husband of the 1st respondent and father of the 2nd respondent, is liable to pay maintenance to the respondents. The appellant examined himself as D.W.1, examined one Saravanan as D.W.2 and marked 25 documents as Exs.B1 to B25. 5. The learned Judge considering the pleadings, oral and documentary evidence, held that the appellant, as husband of the 1st respondent and father of the 2nd respondent, is liable to pay maintenance to the respondents. The learned Judge directed the appellant to pay a sum of Rs.3,000/- to the 1st respondent for her maintenance from the date of the suit i.e., 23.03.2017 till her life time and Rs.6,000/- per month to the 2nd respondent/minor daughter for maintenance from the date of the suit i.e., 23.03.2017 till her marriage and also directed the appellant to pay a sum of Rs.36,000/- to the 1st respondent and Rs.72,000/- to the 2nd respondent towards past maintenance for one year from March 2016 to February 2017. The learned Judge also held that the respondents are entitled for creating charge over the 1st item of the schedule mentioned properties towards their claim of maintenance against the appellant. 6. Against the said order dated 27.07.2020 made in O.S.No.7 of 2017, the appellant has come out with the present Appeal Suit. 7. The learned counsel appearing for the appellant reiterated the averments made in the petition filed in the F.C.O.P. and written statement filed in the suit. The learned counsel appearing for the appellant contended that the appellant is only a laborer in the Silver Anklet business and is earning a sum of Rs.70/- to Rs.150/- per day. The learned Judge erroneously held that the appellant is doing Silver Anklet business along with his father. The learned Judge wrongly interpreted the particulars in marriage invitation where it has been stated “K.G. Sons, Silver Chain Manufacturers, Maniyanoor, Salem-10”. The finding of the learned Judge is only on presumption and assumption. The 1st respondent is a M.B.A. graduate. At the time of filing the written statement, she was unemployed. When the suit was taken up for trial, the 1st respondent was working as a Teacher in a School near her house and is continuing to work even now and is earning a sum of Rs.19,000/- per month. The 1st item of the property does not belong to the appellant and learned Judge erroneously ordered creation of charge over the said property. The 1st respondent has deserted the appellant voluntarily without any reasonable cause and is living separately from 13.03.2014. The 1st item of the property does not belong to the appellant and learned Judge erroneously ordered creation of charge over the said property. The 1st respondent has deserted the appellant voluntarily without any reasonable cause and is living separately from 13.03.2014. She has harassed and tortured the appellant by giving several complaints to the Police, due to which the appellant and his family members faced criminal trial. The 1st respondent is not entitled to maintenance. The order of maintenance granted by the Family Court is totally against the provisions of Sections 18, 20 and 23 of the Hindu Adoptions and Maintenance Act, 1956, as the 1st respondent herself has treated the appellant with cruelty and deserted the matrimonial home voluntarily and hence, it is deemed that her claim for maintenance is forfeited as per Sections 18(2)(a)(b) of the Hindu Adoptions and Maintenance Act, 1956. The learned Judge failed to take into account the status of parties and the fact that the 1st respondent deserted and living separately which was found to be true by Trial Court in divorce proceedings. The learned Judge has no power to order past maintenance and prayed for setting aside the judgment and decree of the Family Court and allowing the appeal. 8. The learned counsel appearing for the respondents reiterated the averments made in the plaint as well as in the counter statement filed in the F.C.O.P. The learned counsel appearing for the respondents contended that the 1st respondent is living separately along with the 2nd respondent/minor daughter only due to the cruelty meted out by the appellant and his family members. The 1st respondent is not employed and she has no independent means to maintain herself and 2nd respondent/minor daughter. The appellant is getting income every month from the family business and is capable of maintaining the respondents. The appellant, as husband of 1st respondent and father of the 2nd respondent, is bound to maintain the respondents when the 1st respondent is not having any independent income. The 1st item of the property belongs to the appellant absolutely. The learned Judge rightly created a charge over the said property. The learned Judge considered all the materials placed before him and directed the appellant to pay maintenance and hence, prayed for dismissal of the appeal. 9. The 1st item of the property belongs to the appellant absolutely. The learned Judge rightly created a charge over the said property. The learned Judge considered all the materials placed before him and directed the appellant to pay maintenance and hence, prayed for dismissal of the appeal. 9. Heard the learned counsel appearing for the appellant as well as the respondents and perused the entire materials available on record. Points for consideration: (1) Whether the appellant is liable to pay maintenance to the respondents? (2) Whether the charge created over the 1st item of the property is correct? Point No.(1) :- 10. Both the learned counsel appearing for the appellant and respondent has reiterated various allegations of cruelty and harassment as stated in the petition in F.C.O.P., counter statement, plaint and written statement in O.S.No.7 of 2017. The said contentions are not relevant to decide the issue in the Appeal Suit. It is an admitted case that the 1st respondent is wife of the appellant and 2nd respondent is his daughter. Being husband of the 1st respondent and father of the 2nd respondent, the appellant is duty bound to maintain them. The 1st respondent alleged that the appellant is earning a sum of Rs.80,000/- per month from the joint family business. It is the case of the appellant that the 1st respondent is working as a Teacher in a School and is earning a sum of Rs.19,000/- per month. Both the appellant as well as 1st respondent have not produced any material to show the income of other parties. Considering the fact that joint family business of Manufacturing Silver Anklet is carried on by the family of the appellant and in the marriage invitation it has been mentioned as “K.G. Sons, Silver Chain Manufacturers, Maniyanoor, Salem-10”, the contention of the appellant that he is only a worker in the business carried on by his father and is earning a sum of Rs.70/- to Rs.150/- per day is not acceptable. Considering the nature of the business, the learned Judge has rightly held that appellant as husband of the 1st respondent and father of the 2nd respondent is bound to maintain the respondents. The contention of the learned counsel appearing for the appellant that as per the provisions of the Hindu Adoption and Maintenance Act, the 1st respondent is not entitled to maintenance as she deserted the appellant is without merits. The contention of the learned counsel appearing for the appellant that as per the provisions of the Hindu Adoption and Maintenance Act, the 1st respondent is not entitled to maintenance as she deserted the appellant is without merits. The appellant has filed F.C.O.P. for dissolution of marriage only on the ground of cruelty. It is no doubt true that the appellant is claiming that the 1st respondent used to go to her parents house often and from 13.03.2014, she has deserted the appellant and is living with her parents. But the appellant has not sought for decree of divorce on the ground of desertion also and has not pleaded and proved that the 1st respondent has deserted him. In view of the failure on the part of the appellant to plead and prove the desertion by the 1st respondent, it is not open to the appellant to raise the question of voluntary desertion by the 1st respondent. The appellant failed to prove that the 1st respondent is working as a Teacher in a School near her father's residence and is earning a sum of Rs.19,000/- per month. Hence, the appellant is liable to maintain the respondents. The amount ordered as maintenance by the learned Judge to the respondents is not excessive. Though the appellant has challenged the judgment granting past maintenance of Rs.36,000/- to the 1st respondent and Rs.72,000/- to the 2nd respondent, at the time of arguments, the learned counsel appearing for the appellant submitted that the appellant is ready to pay the said amounts ordered as past maintenance to the respondents. Considering all the above materials in its entirety and impugned judgment, we hold that there is no reason to interfere with the judgment of the Trial Court. Hence, Point No.(1) is answered against the appellant. Point (2) :- 11. According to the appellant, he is not the owner of the 1st item of the suit property. His father purchased the said property in his name as Benami. The appellant transferred the ownership to the purchaser. In the suit for maintenance and claiming relief of charge over the property, the question whether the appellant is Benamidhar of his father cannot be decided. The respondents have mentioned 6 items of the properties in the schedule to the plaint. His father purchased the said property in his name as Benami. The appellant transferred the ownership to the purchaser. In the suit for maintenance and claiming relief of charge over the property, the question whether the appellant is Benamidhar of his father cannot be decided. The respondents have mentioned 6 items of the properties in the schedule to the plaint. The appellant is owner of one property, his 2 brothers are owners of each one property and his father is owner of 3 properties. The appellant claims that he has transferred the ownership of the property to the purchaser. The appellant has not furnished any details as to when he transferred the said property and has not filed any document to substantiate his case. In as much as Point (1) is held against the appellant, confirming the judgment and decree of the Trial Court dated 27.07.2020, directing the appellant to pay maintenance, the respondents must have some security for regular payment of maintenance ordered to them. As stated above, the appellant failed to prove that he has transferred the property to purchaser and therefore, the charge created over the 1st item of the property standing in the name of the appellant is valid and legal. For the above reason, Point No.(2) is answered against the appellant. In the result, this Appeal Suit is dismissed, confirming the judgment and decree dated 27.07.2020 made in O.S.No.7 of 2017. Consequently, connected Miscellaneous Petition is closed. No costs.