Smt. Ram Kali W/O Shri Ram Kumar vs Shri Ram Kumar S/O Shri Hari Singh
2004 Latest Caselaw 426 Del

JUDGMENT

Madan B. Lokur, J.

1. This is a rather odd case in which the Appellant says that she is the wife of the Respondent, having been married to him about 40 years ago. From the wedlock a son Sumer Singh was born on 1st July, 1964. When the child was about a month or two, the Appellant says that she was turned out from her matrimonial home. Since then she has been staying with her father and after his death with her brother. The Appellant claims maintenance from the Respondent.

2. The Appellant filed a petition under Section 18 and 23 of the Hindu Adoptions and Maintenance Act, 1956 (the Act) on the basis of above facts. She also stated that some time after she was turned out of her matrimonial home, her husband married one lady called Santosh, without divorcing the Appellant, and from that illegal wedlock, the Respondent has three children.

3. It was also stated that as a result of pressure from society and relations, the Respondent was compelled to give one vacant plot to their child Sumer Singh, who build a small house on the plot after taking assistance from relations, but now Sumer Singh is not maintaining the Appellant with the result that she is compelled to live with her brother. It was stated that the Appellant is quite aged and is unable to independently maintain herself. According to her the Respondent owns agricultural and ancestral land and is in a good position to maintain her.

4. The Respondent denied that he married the Appellant, but the learned Trial Judge held in favor of the Appellant and against the Respondent in this regard. The Respondent has not appealed against the finding of the learned Trial Judge, although during the course of submissions it was faintly argued that no marriage took place between the parties. Apart from making this bald assertion, no worthwhile submission was made in this regard. I am, therefore, proceeding on the basis that there was a valid and subsisting marriage between the parties.

5. The learned Trial Judge, framed the following issues for consideration:-

1. Is the plaintiff the wife of the defendant?

2. To what amount of maintenance, if any, is the plaintiff entitled from the defendant?

6. As mentioned above, the first issue was decided in favor of the Appellant. As regards the second issue, it was submitted by learned counsel for the Respondent that the learned Trial Judge rightly held that since the Appellant had voluntarily deserted the matrimonial home, she was not entitled to any maintenance. In any case, it was submitted that she had kept quiet for such a long time before claiming maintenance and there was no reason for her silence. The Respondent had given a plot of land to the son Sumer Singh, who had been looking after the Appellant, but now that the Appellant is not able to get along with her son, she instituted proceedings for maintenance. The Respondent says that he has also retired from government service and has a family to look after and is not in a position to maintain the Appellant also.

7. There can be no doubt that since the Respondent is married to the Appellant he is under an obligation to maintain her, irrespective of whether or not he has contracted a second marriage. The question that has been agitated is whether, due to any prohibition under the Act, the Appellant is disentitled from claiming maintenance. According to learned counsel for the Respondent since the Appellant deserted the Respondent, as is the finding of the learned Trial Judge, she is not entitled to any maintenance. He has referred to Section 23(1) and (2) of the Act in support of his contention. These provisions read as follows:

''23. Amount of Maintenance. - (1) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-

(a) the position and status of the parties;

(b) the reasonable wants of the claimant;

(c) if the claimant is living separately, whether the claimant is justified in doing so;

(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;

(e) the number of persons entitled to maintenance under this Act.

(3) xxx''

8. The submission of learned counsel for the Appellant is that his client was entitled to live separately from the Respondent because he has contracted a second marriage. In this regard reliance is placed on Section 18 (1) and (2)(d) and (g) of the Act.

These provisions read as follows:-

''18. Maintenance of wife. - (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-

(a) xxx

(b) xxx

(c) xxx

(d) if he has any other wife living;

(e) xxx

(f) xxx

(g) if there is any other cause justifying living separately.

(3) xxx''

9. Both the learned counsels have submitted that the case raises rather strange issues. I am entirely in agreement with them. Unfortunately, there is no adequate evidence on record to show whether the Appellant was actually turned out of matrimonial home or she left of her own accord. The learned Trial Judge has proceeded on the basis that the Appellant has not given any reason for leaving the matrimonial home and there is no allegation of any cruelty against the Respondent. The only allegation was that the Appellant was turned out from the matrimonial home because she did not bring sufficient dowry. The learned Trial Judge disbelieved this because this statement was made by the Appellant's brother and not by her. As far as the Appellant is concerned it appears that she did not try to find out why she was turned out of her matrimonial home. Since there was no apparent reason for the Appellant being turned out of her matrimonial home, it was held that she had voluntarily left the matrimonial home.

10. I think that in the absence of any clear-cut evidence one way or the other, one must look at the normal course of conduct that one would expect in a case like this. It is unlikely that in the mid 1960s, the Appellant would have just walked out of the matrimonial home with a one or two month old baby to live with her parents. There must be something that would have provoked her to leave the matrimonial home, other than a desire to live away from her husband. This is more particularly so because the appellant seems to be illiterate. What circumstances compelled her to leave the matrimonial home are not at all clear. However, assuming for the sake of argument that the Appellant left the matrimonial home voluntarily and without any sufficient cause, the fact remains that subsequently the Respondent got married again and from the second wedlock, he had three children. Consequently, even if the Appellant voluntarily left the matrimonial home, she could not have returned later because of the second marriage contracted by the Respondent. The factum of the second marriage, to my mind, is sufficient reason for the Appellant for not staying in the matrimonial home, at least from the time when the second marriage was contracted. In other words, the Appellant does have a valid justification for living away from the matrimonial home after the Respondent contracted a second marriage. This conclusion is in consonance with Section 18(2)(d) of the Act.

11.The next question that arises is with regard to the quantum of maintenance claimed by the Appellant. She had asked for a sum of Rs.1,000/- per month. In today's time, this is not a huge amount. In fact it would be barely adequate for her sustenance, were she to live alone. Really speaking no submission was made on the quantum of maintenance claimed by the Appellant. Therefore, I think the demand of Rs.1,000/- per month is fully justified given the facts of the case.

12. With regard to the period for which the maintenance is claimed, the Appellant of course claimed maintenance for several decades. I do not think that at this point in time she is entitled to make such a claim spreading over a few decades, particularly since she was silent for so many years and was living with her son, who had been given a plot of land by the Respondent. Sumer Singh was admittedly maintaining the Appellant all along and it is only around the time when she filed a suit before the learned Trial Judge that she felt the need for some financial support for her sustenance because her son was not looking after her. Under the circumstances, I think it will be appropriate if the Appellant is awarded maintenance from the date when she filed the suit before the learned Trial Judge. In arriving at this conclusion, I have, as mentioned above, taken into consideration the fact that the Appellant remained silent for almost 30 years, if not more.

13. Consequently, the impugned order is set aside only to the extent that issue No. 2 is now decided in favor of the Appellant. It is held that she is entitled to maintenance from the date on which she filed a suit against the Respondent. The learned Tribunal Judge will compute the total maintenance due to the Appellant at Rs.1,000/- per month. After the computation is made, the Respondent will pay to the Appellant the arrears of maintenance within a period of three months. Insofar as maintenance from the ate of this decision is concerned, the Respondent will pay a sum of Rs.1,000/- per month to the Appellant month by month on or before the 7th day of each succeeding month.

14. The parties will appear before the learned Trial Judge on 24th May, 2004 for the purposes of computing the arrears of maintenance. The appeal is disposed of in view of the above terms. No costs.