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2023 DIGILAW 1004 (AP)

Dande Mohana Venkata Krishna Rao v. Dande Lalitha

2023-07-06

K.MANMADHA RAO

body2023
JUDGMENT : K. MANMADHA RAO, J. 1. The present Second Appeal is preferred by the appellant aggrieved by the Decree and Judgment dated 18.09.2019 passed in A.S. No. 102 of 2016 on the file of XI Additional District Judge, Tenali, confirming the decree and judgment dated 29.03.2016 passed in O.S No. 169 of 2014 on the file of Principal Senior Civil Judge, Tenali. 2. The appellant is the defendant and the respondents are plaintiffs in O.S. No. 169 of 2014 on the file of Principal Senior Civil Judge, Tenali. 3. For convenience the parties are hereinafter referred to as arrayed before the XI Additional District Judge, Tenali in A.S. No. 102 of 2016. 4. Brief facts of the case are that the 1st plaintiff married the defendant on 27.04.1990. Out of their wedlock, they blessed with daughter who is the 2nd plaintiff/2nd respondent herein. The defendant’s mother used to harass the 1st plaintiff by demanding to bring additional dowry. The defendant also used to harass her at the instance of his mother. The defendant and his mother got abortion to 1st plaintiff in the month of November 1990 and they driven out the 1st plaintiff for want of additional dowry of Rs.1,00,000/-and thereafter the father of the 1st plaintiff deposited the same in her name. On the intervention of the sister of the defendant, the 1st plaintiff joined the defendant. Again the defendant and his mother started harassing her and beat and driven out for not brining the fixed deposit form stands in the name of the defendant. Thereafter the defendant filed O.P No. 68 of 1993 on the file of Senior Civil Judge’s Court, Chirala for divorce and the 1st plaintiff also filed a petition in OP No. 72 of 1994 for restitution of conjugal rights. Both the petitions were dismissed. Thereafter, both are living happily for 3 years. After giving birth to the 2nd plaintiff, the defendant developed illicit intimacy with one Anantha Lakshmi and started harassing the 1st plaintiff. Whenever she questioned about the intimacy the defendant used to harass and beat her and necked out her from his house. As they have no source of income to maintain themselves, she filed OS No. 169 of 2014 before the Principal Senior Civil Judge, Tenali (for short “the trial Court”) for grant of maintenance. Whenever she questioned about the intimacy the defendant used to harass and beat her and necked out her from his house. As they have no source of income to maintain themselves, she filed OS No. 169 of 2014 before the Principal Senior Civil Judge, Tenali (for short “the trial Court”) for grant of maintenance. The same was decreed with costs vide judgment, dated 29.03.2016, and granted maintenance at the rate of Rs.10,000/-each to the plaintiffs No. 1 and 2 per month from the date of filing of petition and also by creating charge over items 1 to 2 plaint schedule properties for future maintenance. 5. The defendant filed written statement denying the allegations made in the plaint. He further contended that the 1st plaintiff has no interest to lead marital life with the defendant. She did not cooperate with the defendant for leading martial life and she voluntarily left the house in year 1991. Thereafter, the defendant sent mediators but the 1st plaintiff refused to live with the defendant. Therefore, the defendant filed a petition for grant of divorce. The father of the defendant is providing money to the plaintiff for maintenance and education of 2nd plaintiff. He is ready to give Ac 1.50 cents of wet land worth about Rs.30,00,000/-. The defendant has already deposited Rs.7,000/-in the name of 2nd plaintiff. The father of the defendant gave Rs.2,00,000/-to the 2nd plaintiff and the same was withdrawn. He further contended that the plaintiffs have capacity to maintain themselves. Therefore, prayed to dismiss the suit. 6. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether the amounts paid to the plaintiffs as alleged by the defendant? 2. Whether the plaintiffs are entitled to maintenance, if so, to what amount? 3. To what relief? 7. On behalf of the plaintiffs, PWs.1 to 3 were examined and Ex.A1 to Ex.A7 were marked and on behalf of the defendant, DW.1 was examined and Ex.B1 was marked. 8. After considering the oral and documentary evidence, the trial Court came to conclusion that the plaintiffs are unable to maintain themselves and the defendant is having sufficient means to provide maintenance to the plaintiffs. Therefore, the suit was decreed and granted maintenance of Rs.10,000/-each and created charge over the plaint schedule properties. 8. After considering the oral and documentary evidence, the trial Court came to conclusion that the plaintiffs are unable to maintain themselves and the defendant is having sufficient means to provide maintenance to the plaintiffs. Therefore, the suit was decreed and granted maintenance of Rs.10,000/-each and created charge over the plaint schedule properties. Aggrieved by the same, the defendant preferred an appeal in A.S No. 102 of 2016 before the XI additional District Judge, Tenali (for short “the first appellate Court. After hearing the both sides, the first appellate Court has framed point for consideration as under: (i) Whether the decree and judgment by the learned Principal Senior Civil Judge, Tenali in O.S No. 169 of 2014 dated 29.03.2016 is liable to be set aside? 9. Basing on the above circumstances the first appellate Court has dismissed the Appeal suit with costs confirming the decree and judgment in O.S. No. 169 of 2014. Challenging the same, the present second appeal came to be filed. 10. Heard Sri Venkateswarlu Kolla, learned counsel appearing for the appellant and Sri P. Sai Surya Teja, learned counsel appearing for the respondents. 11. This Court vide order dated 12.04.2023, having considered the submissions of both sides and on perusal of the record, Admitted the appeal with the following substantial questions of law: (i) When a minor daughter attains majority during he pendency of litigation before the trial Court itself, on whom the burden lies to show that she continued to be financially dependent on her father? (ii) In awarding the maintenance to daughter who attained majority, whether the Courts below committed legal error? 12. Learned counsel for the appellant submits that, after trial learned trial judge decreed the suit on 29.03.2016 without properly considering the matter and granted maintenance to both the plaintiffs at Rs.10,000/-p.m. form the date of filing of petition and created charge over item Nos.1 to 3 of plaint schedule properties. But it was not specified the said judgment as to the date upto which the 2nd plaintiff is entitled to get maintenance. She being daughter is entitled for maintenance till she attains majority, which she did within one year after filing of the suit. He further submits that the appellant/defendant preferred appeal in A.S No. 102 of 2016 before the first appellate Court. However, the learned District Judge also did not consider the matter properly and dismissed the appeal. 13. She being daughter is entitled for maintenance till she attains majority, which she did within one year after filing of the suit. He further submits that the appellant/defendant preferred appeal in A.S No. 102 of 2016 before the first appellate Court. However, the learned District Judge also did not consider the matter properly and dismissed the appeal. 13. To support of his contention, learned counsel has placed reliance on a decision reported in Gireesh Kumar N. vs. Rajani K.V. 2023 Live Law (Ker) 46, wherein the High Court of Kearala at Ernakulam held that “Otherwise, the legal proposition is that an unmarried Hindu daughter can claim maintenance from her father till she is married resorting to S.20(3) of Hindu Adoptions and Maintenance Act, 1956, provided, she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under S.20 of Act, 1956.” 14. He also filed another decision of Hon’ble Supreme Court reported in Abhilasha vs. Parkash and Others, AIR 2020 SC 4355 wherein the Hon’ble Apex Court held that: “There are three more reasons due to which we are satisfied that the orders passed by the learned Judicial Magistrate as well as learned Additional Sessions Judge in the revision was not required to be interfered with by the High Court in exercise of jurisdiction under Section 482 Cr.P.C. ....... From the judgment of the learned Judicial Magistrate, another fact, which is relevant to be noticed is that applicant Nos. 2 to 4, which included the appellant also had filed the proceedings under Section 20 of the Act, 1956 being Suit No. 6 of 2001, which was dismissed as withdrawn on 17.12.2012. ....... Thus, accept the submission of the learned counsel for the appellant that as a preposition of law, an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956. On a plain reading of the above citations, the facts of the above cases are not applicable to the present facts of the case.” 15. On a plain reading of the above citations, the facts of the above cases are not applicable to the present facts of the case.” 15. On the other hand, learned counsel for the respondents contended that the judgments passed by both the Courts below are correct and proper and further there is no merit in the present appeal and the same may be dismissed. 16. During hearing, learned counsel for the respondents has also placed reliance on the judgment of Hon’ble Supreme Court reported in Mansi D/o Aniruddha Pusalkar vs. Aniruddha Ramchandra Pusalkar, 2002 SCC Online Bom. 221 wherein the Apex Court held that: The further observations of the Court on the aspect of burden are also relevant wherein the Court holds that it would be for the parents concerned to point out that the child is in a position to maintain herself. The observation is as follows: “The burden, in our opinion, is rather on the father or mother to show that he or she stands discharged from his or her liability to pay maintenance to the unmarried daughter as the latter is able to maintain herself out of her own earnings or property. The expression 'is unable to maintain himself or herself out of his or her own earnings or other property' is more in the nature of a proviso to the first part of Sub-Section (3) which imposes in most unequivocal terms an obligation on the father or the mother regarding their unmarried daughter or infirm or aged parents. It is, therefore, for the father or the mother to establish that his or her case falls under the proviso. It does not seem to be the intention of the Act that a presumption of ability to earn and maintain herself should, in the case of a Hindu girl, be raised from her bodily health or age alone.” 17. He relied upon another decision of Hon’ble Supreme Court reported in Ashish Ray vs. K. Sonali Ray, 2017 SCC Online Utt. 852 wherein the Apex Court held that: “The burden, in our opinion, is rather on the father or mother to show that he or she stands discharged from his or her liability to pay maintenance to the unmarried daughter as the latter is able to maintain herself out of her own earnings or property. 852 wherein the Apex Court held that: “The burden, in our opinion, is rather on the father or mother to show that he or she stands discharged from his or her liability to pay maintenance to the unmarried daughter as the latter is able to maintain herself out of her own earnings or property. The expression 'is unable to maintain himself or herself out of his or her own earnings or other property' is more in the nature of a proviso to the first part of sub-section (3) which imposes in most unequivocal terms an obligation on the father or the mother regarding their unmarried daughter or infirm or aged parents. It is, therefore, for the father or the mother to establish that his or her case falls under the proviso. It does not seem to be the intention of the Act that a presumption of ability to earn and maintain herself should, in the case of a Hindu girl, be raised from her bodily health or age alone. In the instant case, however, the matter of the plaintiff being able to maintain herself or not was present to the minds of both the parties and any rule as to burden of proof could not affect the findings of the lower appellate Court. There is no merit in this appeal which stands dismissed with costs.” 18. On perusing the entire material available on record, this Court observed that, it is an admitted fact that, the marriage between the 1st respondent and the appellant was performed on 27.04.1990 at Dogiparthivari Kalyana Mandapam, Kothapet, Guntur, as per Hindu rites and customs. It is the contention of the 1st respondent that she conceived during her stay with the appellant at Parchuru and the same was got aborted by the 1st appellant and his mother harassed the respondent to bring additional dowry. For which, the 1st respondent’s father deposited Rs.1,00,000/-in her account, but having not satisfied with the same, both the appellant and his mother harassed the 1st respondent and necked out from the house with a demand to bring cash. This Court further observed the appellant filed OP No. 68 of 1993 on the file of the trial Court for grant of divorce and similarly the 1st respondent had filed OP No. 72 of 1994 before the same Court for grant of restitution of conjugal rights. This Court further observed the appellant filed OP No. 68 of 1993 on the file of the trial Court for grant of divorce and similarly the 1st respondent had filed OP No. 72 of 1994 before the same Court for grant of restitution of conjugal rights. By the intervention of the elders, the dispute between the appellant and the 1st respondent was settled and the above OPs were dismissed. During the stay of the 1st respondent with the appellant, they blessed with the 2nd respondent on 9.8.1996. It is also observed that the appellant, he himself admitted during his cross examination that he is living with one Anantha Lakshmi since 1995. The 1st respondent admitted that herself and her daughter are in the custody of her father-in-law till 2013 which itself shows the conduct of the appellant that the appellant himself deserted the 1st respondent without reasonable cause and without fault of the 1st respondent and is living with one Ananthalakshmi. 19. This Court further observed that, as per the evidence of PW.1, in her examination stated that the appellant getting income of Rs.8,00,000/-p.a. on the schedule properties in addition to his salary of Rs.30,000/-and the appellant is leading luxurious life. She requires Rs.10,000/-towards maintenance and as the 2nd respondent is studying B.Tech. requires Rs.10,000/-p.m. for her maintenance. The appellant did not deny the fact that he owns plaint schedule property. 20. Having regard to the facts and circumstances of the case, this Court is of the opinion that, the burden, is rather on the father or mother to show that he or she stands discharged from his or her liability to pay maintenance to the unmarried daughter as the latter is able to maintain herself out of her own earnings or property. The expression is unable to maintain himself or herself out of his or her own earnings or other property is more in the nature of a proviso to the first part of sub-section (3) which imposes in most unequivocal terms an obligation on the father or the mother regarding their unmarried daughter or infirm or aged parents. In the case of Hindu girl, be raised from her bodily health or age alone. In the case of Hindu girl, be raised from her bodily health or age alone. In the instant case, however, the matter of the 2nd respondent being able to maintain herself or not was present to the minds of both the parties and any rule as to burden of proof could not affect the findings of the first appellate court. Therefore, this Court feels that, since the Courts below have rightly decided and passed the orders, found no merit in the instant appeal and the same is liable to be dismissed. 21. Accordingly, the Second Appeal is dismissed. No order as to costs. 22. As a sequel, all the pending miscellaneous applications shall stand closed.