Madras High Court
T.V.Rajamanickam vs Akilandeswari on 3 September, 2021
A.S.No.338 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.338 of 2011
and M.P.No.1 of 2011
T.V.Rajamanickam ...Appellant
Vs.
Akilandeswari ...Respondent
Prayer: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree of the Family Court,
Salem, dated 29.03.2011 in O.S.No.23 of 2005.
For Appellant : Mr.D.Sivakumar
For Respondent : No appearance
1/13
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A.S.No.338 of 2011
JUDGMENT
The defendant, in a suit for maintenance, has challenged the judgment
and decree passed by the Family Court, Salem in O.S.No.23 of 2005. The
parties in this appeal are referred to in the same rank as before the Family
Court.
2.Case of the plaintiff:-
The plaintiff had filed a suit in O.S.No.23 of 2005 claiming
maintenance of a sum of Rs.10,000/- per month, till her life time and to
create a charge over the property described in the suit schedule. The
plaintiff had listed three items of properties. It is her case, that she and the
defendant had got married on 25.12.1985 and after marriage had been living
as husband and wife in the matrimonial home till 1993. In order to provide
security to her, her father had purchased a house in Salem on 01.12.1986
and from the year 1994, the plaintiff and the defendant were residing at this
place.
3.Out of the wedlock, the plaintiff had given birth to a daughter
Nagalakshmi on 10.04.2000 and a son Naganathan on 15.07.2002. It is the
case of the plaintiff that the demeanor of the defendant had changed, after
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A.S.No.338 of 2011
the birth of his daughter and he started having illicit intimacy with other
women. The plaintiff was subject to physical abuse, if she questioned his
activities. The defendant's behavior has deteriorated and it was impossible
for the plaintiff to continue living with him.
4.The defendant was carrying on business in old motors and the
plaintiff's father had invested money into a vessel business, which was
started in the name of the plaintiff. The properties were acquired at several
places, from out of the income of this business. The plaintiff had started
losing interest in matrimonial life as he started seeing money and he was
compelling the plaintiff to sign in a few blank papers and stamp papers and
also compelling her to grant him a divorce.
5.During the year 1999-2000, the activities of the defendant had
turned so bad that he had brought a concubine into the matrimonial house
by name Vijayalakshmi. He proclaimed her to be his second wife and started
living with her. The defendant took possession of all the properties, not only
the one standing in his name but also standing in the name of the plaintiff
and he threatened the plaintiff that if she does not consent for a divorce, he
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A.S.No.338 of 2011
would sell away all the properties. After the year 1999-2000, the defendant
had also stopped paying any maintenance to the plaintiff as well as her
minor daughter (the son was yet to be born). The plaintiff therefore took
shelter in her parental home.
6.Thereafter, the defendant had filed a petition for divorce in
F.C.O.P.No.104 of 2000 on the file of the Family Court, Salem. While the
said petition was pending, well wishers of the defendant and the plaintiff
tried to negotiate a settlement and thereafter, the defendant agreed to take
back the plaintiff and had expressed regret for his action. The plaintiff
believed the words of the defendant and resumed co-habitation with the
defendant. Thereafter, the minor son Naganathan was born to the two. The
defendant ultimately had not pressed the divorce petition only on
13.05.2003. Simultaneously, the defendant had also filed a suit for bare
injunction against the plaintiff in O.S.No.268 of 2003 and the suit was
dismissed for default on 22.08.2003.
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A.S.No.338 of 2011
7.Ultimately, they parted way with the defendant deserting the
plaintiff and living separately in the house which belonged to the plaintiff.
The defendant continued residence in the suit 1st item of the property,
standing in the name of the defendant. However, she did not receive any
maintenance from the defendant and she had to not only maintain herself
but also her minor children. It was her case that the defendant had property
worth over a sum of Rs.22 lakhs as self acquired properties apart from the
joint family properties which are worth over a sum of Rs.25 lakhs and he
was earning a monthly income of Rs.30,000/-. Therefore, the defendant has
come forward with the suit for maintenance.
8.Written Statement of the defendant:
The defendant had resisted the suit inter alia contending that the
plaintiff had come to the Court with false allegations. He would submit that
the property standing in the name of the plaintiff, was also purchased only
by him and the defendant had not received any money either from the
plaintiff or from her parents. He would deny the allegations that he had
started living with another women. He would submit that he had been
constrained to file the divorce petition only on account of the conduct of the
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A.S.No.338 of 2011
plaintiff. He took back the plaintiff only on her assurance that she would
live with him as a dutiful wife. Therefore, he had also not pressed the
petition.
9.However, contrary to her assurance, the plaintiff had left him
without any valid reason and that too on account of no fault on the part of
the defendant. The defendant would also submit that the plaintiff is
receiving rent from the building belonging to the defendant and she had also
started giving him a lot of trouble by giving false complaint to the police
that the defendant was attempting to grab off the properties. On the
contrary, it was the plaintiff who was attempting to take control of all the
properties of the defendant. Despite several requests, it was the plaintiff
who was keeping away from her matrimonial home and the defendant was
always ready and willing to live with the plaintiff and maintain the children.
However, the plaintiff was hellbent on not rejoining the defendant. The
defendant would submit that the plaintiff is only interested in his properties.
The defendant was forced to execute a settlement deed in favour of his son
regarding a portion of his property and at that time, the plaintiff had assured
that she would not claim any rights in the property or for maintenance. Once
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A.S.No.338 of 2011
again, by filing the above suit, she had gone back on her word. He would
deny the fact that he was possessed a property worth self acquired and
ancestral, to the tune of over a sum of Rs.47 lakhs and also denied that, he
was earning a monthly income of Rs.30,000/-.
10.Trial Court:-
The learned Family Judge, Salem, had on considering the pleadings
and written statement, framed the following issues:
(a) Whether the plaintiff is entitled for maintenance as
prayed for?
(b) To what relief the plaintiff is entitled for?
11.It appears that the issues were recast and the recasted issues are as
follows:
(1)Whether the plaintiff is entitled for maintenance?
(2)Whether the suit schedule items 1 to 4 are liable to be
created charge?
(3)To what other relief the plaintiff is entitled to?
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A.S.No.338 of 2011
12.The plaintiff has examined herself as PW1 and marked Exs.A1 to
A4 in support of her case. The defendant has examined himself as DW1 and
marked Exs.D1 and D2.
13.On consideration of the evidence, both oral and documentary, the
learned Family Judge had partly decreed the suit by directing the defendant
to pay a sum of Rs.3,000/- per month as maintenance to the plaintiff from
the date of filing of the suit, till her vacating item 1 of the suit schedule
property. In the event of her vacating and handing over possession of item 1
of the suit schedule property to the defendant, the plaintiff was entitled to
enhance the maintenance of Rs.7,500/- per month and from that day, there
would be a charge in respect of the above sum over the 1st item of the suit
schedule property. In all other aspects, the prayer of the plaintiff was turned
down. Challenging this judgment and decree, the defendant is before this
Court.
14.The points for consideration in the above appeal:
(a) Whether the plaintiff is entitled to a monthly
maintenance, when she is already in possession of the property
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A.S.No.338 of 2011
of the defendant and receiving rent from the said property?
(b) Whether the amount of maintenance granted is on
the higher side?
© Whether the judgment and decree of the Trial Court is
correct?
15.The respondent, who has been served with the summons in the
first appeal has not entered appearance either in person or through counsel.
Therefore, the arguments of the learned counsel for the appellant/defendant
alone was heard by this Court.
16.Mr.D.Sivakumaran, learned counsel appearing on behalf of the
defendant would contend that the plaintiff has come forward with the case
that she had been deserted and neglected by the defendant and therefore, she
was entitled to a maintenance. She had also claimed a sum of Rs.10,000/- on
the premise that the defendant had extensive properties, standing to his
individual name and his joint name along with the other members of his
family, apart from earning a monthly income of Rs.30,000/-. He would point
out the defence wherein the defendant had clearly stated that the plaintiff is
in the occupation of the property which belongs to the defendant and that
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A.S.No.338 of 2011
apart, she has leased out the first floor of the said building to third parties
and earning a rental income therefrom. That apart, the defendant has also
executed a settlement deed in favour of his son in respect of a portion of his
property. He would therefore submit that the plaintiff is adequately provided
for and she does not require a monthly maintenance. He would also state
that the defendant had purchased the propery, out of his income and neither
the plaintiff nor her parents are contributed towards its purchase. He would
also point out that the plaintiff has not established her contention that her
father had provided funds for the purchase of immovable property and also
by investing in the business. The defendant had at no point of time denied
his duty to maintain the wife namely the plaintiff. However, it was the
plaintiff who was not willing to continue in her matrimonial home with the
defendant/husband. Therefore, the plaintiff who out of her own volition had
left her matrimonial home is not entitled to be maintained. He would further
argue that without proving the income of the defendant, the Court below has
erred in granting maintenance to the plaintiff and failing to draw adverse
inference from the fact that the plaintiff had failed to produce documents to
show how much of rent she was receiving from the properties let out by her.
He would therefore pray that the decree and judgment to be set aside.
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A.S.No.338 of 2011
17.Admittedly, the plaintiff and the defendant are husband and wife
and both of them are living apart long from the year 2003. That the
relationship between the two was strained, is evident from the fact that the
defendant had filed a petition for divorce in F.C.O.P.No.104 of 2000, which
ultimately was withdrawn, after well wishers have intervened to bring about
a rapprochement between the parties.
18.It is needless to state that the husband is duty bound to maintain
his wife and admittedly, the defendant has not been discharging his duty.
The only excuse that has been put forward by the husband is that the wife is
earning income by leasing out his property to third parties. The evidence
would reveal that the plaintiff is residing in one portion and it is only the
first floor of the premises that has been let out to tenants. When the
defendant has failed in his duty to maintain his wife and children, the
plaintiff, who had the custody and care of the minor children, was left with
no other alternative except to lease out a portion of the property so has to
earn sum income. Even this appears to be a paltry sum of Rs.3,000/-. No
doubt, the plaintiff has not produced documents to prove the income that
she was earning by leasing out the property. The defendant had also not
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A.S.No.338 of 2011
taken any steps to summon tenants so as to ascertain the actual rent that was
received by the plaintiff. The Trial Court has balanced the interest of both
the parties and taking note of their status, had partly decreed the suit. The
Trial Court had also rejected the claim of the plaintiff to create a charge in
respect of all the properties of the defendant and has restricted the charge
only to the 1st item of the property, in which admittedly, the plaintiff is now
residing. The appellant/defendant has not made out any case for this Court
to interfere with the findings of the learned Family Judge, Salem.
Consequently, the First Appeal is dismissed and the decree and judgment in
O.S.23 of 2005 of the Family Court, Salem is confirmed. However,
considering the circumstances, there shall be no order to cost. Consequently,
connected Miscellaneous Petition is also closed.
03.09.2021
Index : Yes/No
Internet : Yes/No
vkr/gd
To
The learned Judge, Family Court, Salem.
https://www.mhc.tn.gov.in/judis/
A.S.No.338 of 2011
P.T. ASHA, J,
vkr/gd
A.S.No.338 of 2011 and
M.P.No.1 of 2011
03.09.2021
https://www.mhc.tn.gov.in/judis/
