Madras High Court
Thiyagarajan vs S.Poomathi on 29 November, 2021
A.S.No.648 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.11.2021
CORAM
THE HON'BLE MR.JUSTICE S.S.SUNDAR
A.S.No.648 of 2018
1. Thiyagarajan
2. M.Aarthi
3. Minor T.Yogasri
4. Minor T.Akshaya
Minor Appellants 3 and 4
Rep. by Mother and Guardian
2nd Appellant M.Aarthi ... Appellants
Vs.
1. S.Poomathi
2. P.Abinaya
3. P.Pavithra
4. Leelavathi ... Respondents
Appeal Suit is filed under Section 96 of the Civil Procedure Code
1908, to set aside the Judgment and Decree dated 13.06.2018 made in
O.S.No.26 of 2013 on the file of the IV Additional District Court, Erode
District at Bhavani.
For Appellants : M/s.Zeenath Begum
For R1 to R3 : Mr.N.Manokaran
https://www.mhc.tn.gov.in/judis
1/10
A.S.No.648 of 2018
JUDGMENT
This Appeal Suit is directed against the Judgment and Decree
dated 13.06.2018 made in O.S.No.26 of 2013 on the file of the IV
Additional District Court, Erode District at Bhavani.
2. The defendants 2 to 5 in the suit in O.S.No.26 of 2013 are the
appellants herein. The 1st appellant is the husband of the 1st respondent
and respondents 2 and 3 are the daughters of the 1st appellant. Similarly,
the 4th respondent is the mother of the 1st appellant. The respondents 1 to
3 as plaintiffs filed a suit in O.S.No.26 of 2013 for maintenance and for
partition of 1/6th share in all the suit properties. In this case, the
relationship between the parties is not in dispute.
3. The appellants are defendants 2 to 5 in the suit and the 4th
respondent in the appeal is the 1st defendant in the suit. The 4th
respondent is the mother of the 1st appellant. The 1st appellant is the
husband of the 1st respondent and the appellants 2 to 4 are the 4 th wife
and children born to the 4th wife of 1st appellant. There is no dispute that
the 1st respondent is the 1st wife of the 1st appellant who married the 1st
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
respondent on 26.05.1993. Out of the wedlock, the plaintiffs 2 and 3
namely the respondents 2 and 3 herein were born.
4. The Trial Court decreed the suit in part by granting maintenance
to the plaintiffs at the rate of Rs.5,000/- per month to the 1st plaintiff from
the date of plaint and by directing the 1st appellant to pay a sum of
Rs.5,000/- per month to each of the plaintiffs 2 and 3 from the date of
plaint till the date of their marriage. The further direction issued to the 2nd
defendant / 1st appellant was to pay a sum of Rs.1,00,000/- to the
plaintiffs 2 and 3 every year from 2013 till the completion of their
studies. Charge was also directed to be created over the 1/2 share of the
suit properties of the 2nd defendant / 1st appellant in lieu of the
maintenance payable to the plaintiffs. The suit in respect of relief of
partition is dismissed, since the property belonged to the father of the 1st
appellant and that the 1st appellant's father died after 1956. Aggrieved by
the Judgment and Decree dated 13.06.2018 passed by the Lower Court
granting maintenance in favour of the respondents 1 to 3, the appeal has
been preferred by the husband / 1st appellant.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
5. The learned counsel appearing for the appellants submitted that
respondents 1 to 3 are being maintained by the 1st appellant and therefore
the decree granted by the Lower Court is unsustainable. It is also stated
that the 1st respondent had voluntarily left the matrimonial home and
therefore she is not entitled to claim maintenance.
6. The learned counsel for the appellants further submitted that the
1st appellant is bearing the expenses for the maintenance and studies of
the minor children and therefore the Lower Court ought not to have
granted a decree for maintenance.
7. The only submission reiterated by the learned counsel for the
appellants is that the respondents 1 to 3 are being maintained by the
father and that the father is also taking care of the education expenses of
the minor children. The issue regarding liability towards maintenance is
not in dispute. The case of the appellants that the 1st appellant was
maintaining the respondents 1 to 3 before suit may be a fact. However,
the liability of the 1st appellant to maintain the wife and children cannot
be ignored.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
8. Section 18 of the Hindu Adoptions and Maintenance Act 1956
reads 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 life time.
(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 wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a
reasonable apprehension in her mind that it will be harmful or
injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is
living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another
religion;
(g) if there is any other cause justifying living separately.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
(3) A Hindu wife shall not be entitled to separate residence and
maintenance from her husband if she is unchaste or ceases to be a
Hindu by conversion to another religion.
(i) The wife had been living alone and all the children had been
brought up by her without any assistance and help from the husband
and there was a clear case of desertion, the wife was entitled to
separate residence and maintenance; Meera Nireshwalia v. Sukumar
Nireshwalia, AIR 1994 Mad 168.
(ii) The thoughtless action of the husband of evicting the wife
from the house where she had been living in collusion with the
purchasers of the house and the police inflicted a deep wound on her
amounting to cruelty, the wife was entitled to live separately and claim
maintenance; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994
Mad 168.
(iii) The claim for maintenance by a wife can also be sustained
under clause (g) even on a ground covered by one or other clauses i.e.
clause (a) to (f) of section 18(2) substantially but not fully. Merely
because the wife fails to strictly prove the specific grounds urged by
her, she cannot be denied relief; Meera Nireshwalia v. Sukumar
Nireshwalia, AIR 1994 Mad 168.”
9. As per Section 18 of the Hindu Adoptions and Maintenance Act,
the 1st appellant is liable to maintain the wife. However, the husband
relied upon the document Ex.A1.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
10. The learned counsel appearing for the appellants though stated
that the wife is not entitled to claim maintenance, the learned counsel
appearing for the respondents submitted that the wife was compelled to
go out of the matrimonial home as the 1st appellant was living with
another wife. It is not in dispute that the 1st appellant has married the 4th
wife during the subsistence of 1st marriage.
11. It is admitted that the husband had earlier filed a petition for
Restitution of Conjugal Rights and obtained a decree. Thereafter, the
husband filed a petition for divorce in H.M.O.P.No.40 of 2004 on the file
of the Sub Court, Bhavani. The certified copy of the order is marked as
Ex.A1 in the suit. A reading of the proceedings in H.M.O.P.No.40 of
2004 clearly indicate that the 1st respondent was found justified to live
separately. As a matter of fact, there was a categorical finding that the
wife was forced to live separately on account of her husband living with
another lady in the matrimonial home. It is for the said reason, divorce
was granted with a specific finding that the husband is liable to maintain
the 1st wife and children.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
12. The learned counsel appearing for the respondents relied upon
the Judgment of Hon'ble Supreme Court in the case Smt. Rohini Kumari
Vs. Narendra Singh reported in 1972(1) SCC 1, wherein, the Hon'ble
Supreme Court considered the entitlement of wife to get maintenance
even if she is living separately from her husband and held that she has a
right to live separately in certain circumstances. Paragraph 10 of the said
Judgment is relevant to the facts of this case. Hence, in view of the
finding of the Learned Subordinate Judge in H.M.O.P.No.40 of 2004 and
in view of the specific provisions of the Hindu Adoptions and Marriage
Act 1956, this Court is unable to find any infirmity or irregularity in the
order passed by the Lower Court granting maintenance to the
respondents 1 to 3.
13. The learned counsel appearing for the appellants has not made
any submission with regard to the status of parties or other aspects to
reduce the amount. For the reasons stated, this Court finds no merit in the
appeal and accordingly this appeal is dismissed. No costs.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
14. It is clarified that the wife is entitled to maintenance till her
death and the respondents 2 and 3 are entitled to maintenance till their
marriage.
29.11.2021
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
To
The IV Additional District Court, Erode District, Bhavani.
https://www.mhc.tn.gov.in/judis
A.S.No.648 of 2018
S.S.SUNDAR.J.,
raja
A.S.No.648 of 2018
29.11.2021
https://www.mhc.tn.gov.in/judis
