Andhra Pradesh High Court - Amravati
) Whether The vs Unknown on 28 December, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL Nos.1162 and 1191 of 2012
COMMON JUDGMENT:
A Hindu husband claims that he shall not be directed to
pay maintenance to his legally wedded Hindu wife. His further
claim is that even if he is to be directed to pay maintenance that
order shall not be from the date of filing of the suit but only
from a later point of time. It is on these suppositions, the
Hindu husband presented these two second appeals seeking
admission of them under Section 100 C.P.C.
2. Since notices were taken out to the respondent for
hearing before admission and since the respondent made her
appearance through her learned counsel, these two appeals are
heard before admission.
3. A Hindu wife sued her husband in O.S.No.57 of 2003
seeking for a monthly maintenance of Rs.4,000/- and also
claimed for maintenance for a period of one year preceding the
institution of the suit. It was around in the year 1980 the
marriage between man and woman was solemnized according to
Hindu Rites and Customs and during their wedlock a daughter
was born. Earlier to the marriage, the spouses were related to
one another. Thereafter, the husband developed sexual
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S.A.Nos.1162 & 1191 of 2012
intimacy with his own maternal uncle's daughter by name
Syamala and developed hatred towards his married wife and he
brought the other lady to home. The wife endured it for a while
hoping that there would be some change in the attitude of her
husband and finally as she did not find any change in him she
initially filed M.C.No.44 of 1995 against her husband under
Section 125 Cr.P.C. seeking for maintenance. Husband made
appearance there and finally that matter ended in a compromise
under which husband had agreed to pay Rs.400/- per month
towards maintenance of his wife. In disobedience to that order,
husband failed to pay any monthly maintenance. He neglected
his wife and he started living with the other woman. The
married wife has to groom her female daughter and educate her
bearing all the expenses. It is stated that her husband is a
Government Teacher in a High School in the Agency Area of
Visakhapatnam District and he has been earning handsome
monthly salary. It is with these allegations the suit for monthly
maintenance was filed by the wife as against her husband.
4. In his written statement the husband admitted the
marital nexus between the parties to the litigation and denied
rest of the allegations. According to him, his wife has not been
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S.A.Nos.1162 & 1191 of 2012
willing to come forward to live with him in the agency area and
always stayed back at her village and that made him to suffer a
lot and lead a lonely life in the agency area where he had to
work out for his own food and shelter. The wife had no regard
towards matrimonial life. It was four years after the marriage
they fell apart. She never has come forward to join him. She
owned several properties and does not require maintenance. He
admitted his employment and earning salary and explained
about one instance where he paid some amount to his
daughter's medical treatment. He further contended that
having filed M.C.No.44 of 1995 the wife is estopped from filing
the present suit. For all these reasons, he sought for dismissal
of the suit.
5. The suit was tried by the learned Junior Civil Judge,
Srungavarapukota. The issues settled in the suit are as below:
1) Whether the plaintiff is entitled for Rs.4,000/- p.m. as
future maintenance?
2) Whether the plaintiff is entitled for past maintenance as
prayed for?
3) To what relief?
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6. For plaintiff, PWs.1 to 3 testified and Exs.A.1 and A.2
were marked. For defendant, DWs.1 to 4 testified and Exs.B.1
to B.12 were marked.
7. On considering the evidence and the arguments on both
sides, the learned trial Court recorded various findings on facts.
On evidence it found that this married husband has brought
another woman to the matrimonial home and that led to discard
as a consequence of which spouses started living separately. It
found that the gross salary of the husband was Rs.30,000/- per
month and therefore, claim of maintenance at the rate of
Rs.4,000/- per month was found just and reasonable. As to the
properties that are allegedly owned and possessed by the wife,
the trial Court did not agree with the contentions of the
husband. It also held that Rs.400/- maintenance that was
agreed upon between the parties in M.C.No.44 of 1995 has also
not been paid by the husband. Learned trial Court referred to
Section 18 of the Hindu Adoptions and Maintenance Act, 1956
(for short, 'the Act, 1956') and narrated as to when a Hindu wife
can claim maintenance and when a Hindu wife can claim
maintenance while living separately. It considered the plea of
the husband about his willingness to maintain his wife and
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S.A.Nos.1162 & 1191 of 2012
daughter provided they come to him and stated that the same
was not believable in the context of the facts available on record.
About the properties allegedly owned and possessed by the wife,
the learned trial Court stated that the said aspect of the matter
has no relevance since the duty to maintain a wife is an
incidence of the marriage itself and since the husband failed to
discharge that obligation, he was held bound to pay
maintenance. With those findings it decreed the suit in the
following terms:
"In the result, the suit is decreed with costs as under:
That the defendant is directed to pay future
maintenance to the plaintiff at the rate of Rs.4,000/-
per month from the date of decree.
That the defendant is directed to pay an amount
of Rs.48,000/- towards past maintenance at the rate
of Rs.4,000/- per month for a period of one year to the
plaintiff."
8. The husband did not like the decree that directed him to
pay monthly maintenance and therefore, he filed first appeal in
A.S.No.61 of 2011. The wife did not find it correct that the
decree for maintenance granted her the maintenance only from
the date of decree but not from the date of suit and therefore,
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she preferred first appeal in A.S.No.60 of 2011. Thus, one
judgment of the trial Court brought two first appeals.
9. Both the first appeals were heard on merits by learned
Principal District Judge, Vizianagaram and by a common
judgment dated 27.06.2012 he allowed the appeal of the wife
and granted maintenance from the date of suit. He dismissed
the appeal of the husband agreeing with the findings of the trial
Court. Learned first appellate Court went through the entire
evidence on record and considered the arguments on both sides
and it held that on evidence it was established that the
daughter of the spouses is now aged 26 years and the evidence
indicated that the husband was on talking terms with his
daughter only till the age of eight and thereafter he was not even
in communication with his own daughter. It recorded a finding
that he did not pay any visit to his family after 1985. He also
recorded a finding that teachers working in agency areas have
not been in the habit of setting up separate families there and
there was no evidence from the husband that at any time he
made a home there and was helped by at least by his own
mother in cooking food etc., and in such circumstances, it
recorded, that wife not going to agency area by itself cannot be
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S.A.Nos.1162 & 1191 of 2012
called a disentitling factor in the claim of maintenance made by
a wife. It observed that Ex.A.2-Admission Register pertaining to
Aditya Institute of Technology and Management for the year
2003-2007 indicted the student's name, name of the father,
address of residence pertaining to the daughter of the man
through concubine. All those particulars matched with the
name and address particulars of the husband. It is on that
evidence and on the evidence of PWs.1 to 3, the first appellate
Court came to a fully satisfied conclusion that the husband has
been living with his concubine and it was that cause that drove
away the wife. It found that husband willfully neglected to
maintain his wife. It observed that husband had enough
income to maintain himself and has enough income to maintain
his wife, but he has not been maintaining his wife. As to the
contention of the husband about properties of his wife, at para
No.22 of its judgment, the learned first appellate Court recorded
an adverse finding against the husband drawing an adverse
inference that though he was talking about possession of
documents in proof of those assets, he failed to file them. It
gave its own reasons as to why Exs.B.1 and B.2 could not be
relied upon. It was with those observations and in the manner
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that is already referred above, the learned first appellate Court
adjudicated both the appeals.
10. It is against those two judgments in two first appeals, the
husband has been before this Court. He filed S.A.No.1162 of
2012 as against the judgment and decree in A.S.No.60 of 2011.
S.A.No.1191 of 2012 is against judgment and decree in
A.S.No.61 of 2011.
11. Since the second appeals are under Section 100 C.P.C., it
is for the appellant to satisfy this Court that a substantial
question of law is involved in the cases at hand.
12. In the memorandum of grounds of appeal in S.A.No.1162
of 2012, the following substantial question of law is prayed to
consider for admission:
"Whether the first appellate Court committed grave
error in awarding maintenance from the date of suit?"
In S.A.No.1191 of 2012, the following substantial question
of law is prayed to consider for admission:
"Whether the plaintiff satisfied the ingredients under
Section 18 of the Hindu Adoption and Maintenance
Act, so as to claim maintenance against the
husband, when the husband asserted in the written
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statement that he wanted to take back the wife to
the matrimonial fold."
13. Learned counsel on both sides submitted arguments.
14. A Hindu wife is entitled to sue for maintenance and the
provision is made in Section 18 of the Act, 1956. Section 3(b) of
the Act, 1956 defines 'maintenance' in the following terms:
"3. Definitions:-
(a) ......
(b) "Maintenance" includes-
(i) in all cases, provision for food, clothing,
residence, education and medical attendance
and treatment;
(ii) in the case of an unmarried daughter, also the
reasonable expenses of and incident to her
marriage;"
15. How to quantify the maintenance is provided by Section
23 of the Act, 1956. As per Section 23(2)(d) of the Act, 1956,
the assets and income of wife is a relevant factor in determining
the amount of maintenance and not a factor to decide the
eligibility to claim maintenance.
16. From the established facts on evidence, it is seen that
parties to these appeals are Hindus and are governed by Hindu
personal Laws and they are legally wedded spouses to each
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S.A.Nos.1162 & 1191 of 2012
other and through their wedlock they gave birth to a female
daughter, who is now an adult and that the marriage between
these spouses of the year 1980 and they stopped living since
1985 and the litigation between them was first through
M.C.No.44 of 1995 and the suit for maintenance filed by the
wife was in the year 2003. The wife is a home maker and is not
gainfully employed by herself. Husband has been a
Government Teacher earning his own salary. Facts
do not
indicate husband having any other financial commitments. The
wife is neither a woman doing any profession nor doing any
occupation. Though husband alleged that she owned assets,
the evidence has no indication at all showing the income she
has been getting on such properties. Husband though capable
of filing his own salary certificate did not choose to file his
salary certificate. From the oral evidence, it was found that his
gross salary was Rs.30,000/- per month. In his own terms
husband stated that there were several deductions and
therefore, his monthly salary was only at Rs.12,000/-. He did
not bring it to the notice of the Courts below as to what were
those deductions. These facts established gainfully employed
husband earning handsome salary having no other financial
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obligation except maintaining himself. The wife was found to be
a woman without any occupation and it was she who was
holding custody of her child that too a female daughter and it
was she who was grooming her daughter playing the role of both
the parents and brought up her and the evidence showed that
the daughter was educated upto M.Sc. She did not seek
maintenance for anything else except for her sustenance. Her
claim of Rs.4,000/- maintenance per month stand on a rough
count 1/7th of his gross salary and 1/3rd of his net salary. The
evidence on record and the finding of the Courts below indicated
that after they fell apart in the year 1985 husband never served
any notice to his wife for restitution of conjugal rights and never
moved any applications for custody of his own daughter and
never paid any sum of money to his wife in the form of
maintenance. Thus, having been living separately husband did
not make any positive move to secure his family and rebuild the
matrimonial life. On the other hand, the woman without any
avocation moved the learned Magistrate in the form of
M.C.No.44 of 1995 and the evidence indicate that all the
allegations that she made in the suit are the allegations that
were made in her petition under Section 125 Cr.P.C. also. Be it
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S.A.Nos.1162 & 1191 of 2012
noted that this husband/appellant went for compromise and
the genial woman agreed for it. Thus, there was a compromise
as a result of which the order that was passed was that the
woman shall be paid Rs.400/- per month by the husband. The
findings of the Courts below indicated that only for few months
after that order, the husband paid maintenance and thereafter
he stopped paying maintenance. Irrespective of the merits of
any contentions, the fact on record is that Rs.400/-
maintenance that was agreed to be paid by the husband has not
been paid by him for decades. In this context it is relevant to
note Section 18(2)(a) of the Act, 1956:
"18. Maintenance of wife:-
(2) A Hindu wife shall be entitled to live separately from
her husband without forfeiting her claim to
maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her
without reasonable cause and without her consent or against
her wish, or of willfully neglecting her;"
17. As per this provision, a Hindu wife shall be entitled to live
separately from her husband and claim maintenance if her
husband has willfully neglected her. Failure to pay agreed
maintenance and leaving the wife for two decades without
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making any provision for her can certainly be called
matrimonial neglect of a husband towards his wife. Therefore,
since of 1995 by the time the suit was filed in the year 2003,
there is enough cause and justification for both the Courts
below to sustain the claim of the wife for maintenance while she
is living separately. The contention of the appellant that he has
always been ready and willing to live with his wife and daughter
provided they come to him was not accepted by the trial Court
and the first appellate Court and this Court finds no reason to
find fault with them since the words of the husband appear to
be empty without soul as he never made any social or legal
move to rebuild the family with his wife and daughter. Mere
invitation to matrimonial home in the written statement is not a
bar to sustain the claim of wife for maintenance.
18. Section 18(2)(e) of the Act, 1956 provides that a Hindu
wife can live separately and claim maintenance if her husband
keeps a concubine in the same house in which his wife is living
or habitually resides with a concubine elsewhere. It was on
evidence both the Courts below recorded a finding that the
husband brought the concubine to the matrimonial home. A
legally wedded wife when exposed to such conduct of her
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husband she was justified in not going to her husband.
Desertion is a ground for claiming maintenance by virtue of
Section 18(2)(a) of the Act, 1956. Desertion could be one where
the husband leaves his wife and goes away and lives separately.
Desertion is also possible while the husband creates such
hostile environment in the house with a view to see that his wife
does not come to home. The record in these appeals indicated
the later mentioned circumstance as established. Thus, it was
a case of desertion also.
19. On the factual findings of both the Courts below, in the
manner referred above, at least under three heads the virtue of
wife's claim was found established. The contention of the
appellant/husband that the ingredients of Section 18 of the Act,
1956 are not satisfied in these cases is something that cannot
be countenanced. The ground urged in the appeals is only for
the sake of urging it and the facts on record and dispute
between the parties do not indicate existence of any such
substantial questions of law. Therefore, the appeal of the
husband does not deserve admission.
20. The learned trial Court granted maintenance from the
date of decree. Learned first appellate Court modified it and
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granted maintenance from the date of filing of the suit. That
judgment of the first appellate Court is in challenge. In terms of
the procedure, for a litigant before a Court what is available is
that a plaint is presented and the defendant is invited by
summons and he puts in a written statement and then issues
are settled and evidence is collected and arguments are
submitted and a judgment is rendered. All this procedure in
terms of the time scale starts at one point and ends at a later
point. However, jurisprudently the judgment that is rendered
on a date is a judgment that is deemed to have been rendered
on the date of suit. It is so for the simple reason that what is
adjudicated is what is available in the form of cause of action
when the plaint was presented. It is for that reason every
judgment is deemed to have decided the case on the day when it
is filed. Therefore, every judgment speaks of rights and duties
as are available on the date of suit. When a Court finds that a
Hindu wife was entitled for maintenance, it took a decision that
the claim made in the plaint on the date of suit is found correct.
When it was found correct, it was supposed to grant the relief
from that date and not from a future date. This error that was
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there on part of the trial Court was rightly rectified by the first
appellate Court.
21. Learned counsel for appellant failed to show any principle
of law and also failed to show any particular factual situation to
find fault with the judgment of the first appellate Court. At any
rate, in a suit of the present nature where maintenance is at
dispute judgment of the first appellate Court in granting
maintenance from the date of suit is found in accordance with
law and this Court is not able to see any particular question of
law arising out of such an order. Therefore, appellant failed to
show any admissible substantial question of law. For these
reasons, both points are answered against the appellant.
22. In the result, both the Second Appeals are dismissed with
costs confirming the judgments of the first appellate Court.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 28.12.2022
Ivd
Dr. VRKS, J
S.A.Nos.1162 & 1191 of 2012
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL Nos.1162 and 1191 of 2012
Date: 28.12.2022
Ivd
