Madras High Court
Gunasekaran vs G.Kavitha on 21 January, 2022
SA NO.63 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21 / 01 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.63 OF 2014
Gunasekaran ... Appellant
VS.
G.Kavitha ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 16.08.2013 passed in
A.S.No.16 of 2012 on the file of Subordinate Judge, Poonamallee, partly
modifying the judgment and decree dated 31.10.2011 passed in
O.S.No.292 of 2003 on the file of Additional District Munsif,
Poonamallee.
For Appellant : Mr.R.Bharath Kumar
For Respondent : Mr.G.Dilip Kumar
JUDGMENT
Unsuccessful defendant is the appellant before this Court.
2.The plaintiff filed a Suit for recovery of maintenance from
June 2003 and to create charge over the Suit property for the maintenance
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SA NO.63 OF 2014
payable to the plaintiff by the defendant. According to the plaintiff, she
married the appellant / defendant on 25.04.1993 as per Hindu Rites and
Customs and she was given Sridhana of 10 sovereigns of gold jewels and
two sovereigns of gold chain and ring to the defendant. After marriage,
the defendant quit the job taking substantial amount. He ill treated the
plaintiff without any reasons. She begot two male children and lived in an
un-hygienic and sub-human environment. Whenever she made any
request, she will be treated harshly and sent away to her parents house.
Unable to bear the physical and mental cruelty, she used to go to her
parents house and return home after the defendant's anger recedes.
Unable to bear the physical cruelty, she is living away from the defendant
and living with her parents. Her parents and brothers supported her and
her children and provided them food, shelter and clothing. They are
finding it difficult to provide financial assistance to the plaintiff and her
children and therefore, she claimed Rs.1,250/- per month to her and
another sum of Rs.1,500/- per month to maintain her two children. She
restricted her prayer in the Suit for future maintenance alone.
3.In the written statement, the defendant denied the
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SA NO.63 OF 2014
averments of Sridhanas and the expenditure made by the plaintiff's
parents. The plaintiff insisted to get partition of the property on the ill-
advice of the plaintiff's mother and deserted him and living separately.
The plaintiff and her mother always interested in lodging complaints
against the defendant. The allegations of torture and un-hygienic and sub-
human environment are all false. He never inflicted any physical injury
and he was maintaining the plaintiff and his children when they lived in
the same house. In fact, the matter was compromised between themselves
and the Suit was dismissed for default. Thereafter, the plaintiff lived with
the defendant in the same house between 2004 and 2007. But, it seems
that the Suit was restored and got decreed and the plaintiff filed an
execution petition. During the stay of the plaintiff, he only maintained the
children and paid their school fees and other household expenses. The
plaintiff is employed and getting a good salary of Rs.5,000/- per month.
Whereas, the defendant is unemployed and therefore, she is not entitled
to any maintenance.
4.The Trial Court, after framing appropriate issues, decreed
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SA NO.63 OF 2014
the Suit and granted maintenance @ Rs.1250/- per month from June
2003 and created charge over the property. On appeal, the First Appellate
Court modified the decree by excluding maintenance for the period from
2004-2007 and confirmed the decree and judgment on all other aspects.
Aggrieved over the same, the defendant has preferred the above Second
Appeal.
5.This Court admitted the Second Appeal on 28.02.2019 on
the following substantial questions of law:-
(i) Whether the courts below are correct and
justified in creating a charge over the joint family
property for the alleged maintenance payable by the
defendant?
(ii) Whether the plaintiff is entitled to claim
maintenance from the defendant when she herself
voluntarily deserted, the defendant for some trivial
reasons and failed to fulfill her conjugal obligation in
spite of Ex.A1 Legal Notice dated 30.01.2002?
(iii) Whether the First Appellate Court is correct
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SA NO.63 OF 2014
and justified in creating a charge over the entire suit
property which belongs to joint family, when particularly
the defendant himself is ready and willing to deposit the
considerable amount for the past and future
maintenance?
6.Heard the submissions made on either side and perused the
materials available on record.
7.Admittedly, the Suit is filed for recovery of maintenance
amount from the year 2003 @ Rs.1250/- per month and to create charge
over the property. The plaintiff is employed and the defendant is
unemployed. A perusal of the evidence let in before the Court discloses
the fact that the claim of partition in the joint family property by the
plaintiff's mother is the root cause of the matter. Even though allegations
are made in the plaint of physical torture and ill-treatment, it appears that
there is no serious complaints or incidents alleged against the defendant
for such acts. It is also pertinent to note that during the pendency of the
appeal, the appellant/defendant offered to deposit a sum of Rs.1,50,000/-
towards arrears of maintenance and Rs.1,50,000/- towards future
maintenance. The application was dismissed by the First Appellate Court
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SA NO.63 OF 2014
on the ground that this was made with an ulterior motive to get the charge
over the property lifted. Now that, the substantial questions of law to be
decided is whether creating a charge over the entire joint family property
is justified or not? and whether the plaintiff is entitled to claim
maintenance, after having voluntarily deserted the defendant on trivial
reasons and failed to fulfill for conjugal obligation in spite of the legal
notice issued by the plaintiff.
8.As discussed above, the misunderstanding between the
plaintiff and the defendant appeared to be trivial. This Court had taken
efforts to lead the parties for an amicable settlement by referring it to
mediation. Though the misunderstanding between the parties is trivial,
the root cause for such separation is very strong. Unless the plaintiff's
mother gets a share in the property, this problem cannot be solved.
However, it is an admitted fact that the parties are husband and wife and
the husband is duty bound to maintain his wife. Even though it is
admitted by the plaintiff that she was earning about Rs.5,000/- per
month, it shall be borne in mind that she is educating her children and
they were studying 11th and 8th standard respectively during the year
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SA NO.63 OF 2014
2003. There was no maintenance claimed on behalf of the children. The
maintenance was only with respect to the wife. It is admitted by the
defendant that he has not paid any maintenance to her after 2007.
9.Considering the totality of the circumstances and the close
relationship between the parties, namely, husband and wife, and the wife
being the defendant's own sister's daughter, this Court is of the
considered opinion that the award of maintenance concurrently made by
the Courts below is not unreasonable. Considering the income of the
defendant, the Courts have reasonably fixed the maintenance. Now that
the defendant had offered to deposit a sum of Rs.1,50,000/- towards
arrears of maintenance and Rs.1,50,000/- towards future maintenance for
lifting the charge over the property. This Court permits the appellant to
deposit such amounts.
10.It only remains to discuss about the charge created over
the entire Suit property which belongs to the joint family including the
plaintiff's mother for the maintenance payable to the plaintiff instead of
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creating a charge only to the extent of the share of the defendant in the
Suit property. Admittedly, the plaintiff's mother, who is the sister of the
defendant has already filed a Suit for partition in a Civil Court. This
reveals the fact that the Suit property is a joint family property. The
defendant has three brothers and one sister, who is none other than the
plaintiff's mother. From the admitted fact that it is a joint family property
and that the defendant is entitled to only one share in the Suit property, a
charge cannot be created for the entire property, but it can be created over
the defendant's share alone.
11.In such circumstances, the judgment and decree dated
16.08.2013 passed in A.S.No.16 of 2012 by the learned Subordinate
Judge, Poonamallee, is modified to the following extent :-
(i) The defendant is directed to deposit a sum
of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand
Only) towards arrears of maintenance and
Rs.1,50,000/- (Rupees One Lakh Fifty Thousand
Only) towards future maintenance and continue to
pay maintenance on or before 10th of every English
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calender month after adjusting amounts already
deposited before the Execution Court.
(ii) On such deposit, the charge created over
the entire property is restricted to the extent of
defendant's share alone.
(iii) If any attempt is made by the defendant
relinquishing his share in the Suit property, the
property shall devolve upon his two sons as
undertaken by him and it shall not be encumbered
in favour of his brothers or the third parties. The
charge created over the defendant's share will
operate against him.
12.With these directions, the Second Appeal is partly
allowed. No costs.
21 / 01 / 2022
Index : Yes/No
Internet : Yes/No
TK
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SA NO.63 OF 2014
M.GOVINDARAJ, J.
TK
To
1.The Subordinate Judge
Poonamallee.
2.The Additional District Munsif
Poonamallee.
SA NO.63 OF 2014
21 / 01 / 2022
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