Miscellaneous First Appeal No.4350 of 2006

31st August, 2010

Petitioner Counsel: B. S. GOVINDASWAMY
Respondent Counsel: K. M. MURALI MOUNI

Cases Cited:
Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga, 2005(5) ALL MR 159 (S.C.)=(2005)1 DMC 1 (SC) [Para 8]
Abbayolla M. Subba Reddy Vs. Padmamma, AIR 1999 AP 19 [Para 9]

JUDGMENT

-K. L. MANJUNATH, J.:- The appellant is challenging the legality and correctness of the judgment passed by the II Addl. Principal Judge, Family Court at Bangalore, dated 6th of February, 2006 passed in O.S. No.213/1998.

2. We have heard the learned Counsel for the parties.

3. The appellant was plaintiff in the Suit. She filed a Suit for grant of maintenance at the rate of Rs.2.000/- per month and also to restrain the defendant from alienating the plaint schedule property and create a charge thereon.

4. According to the plaint averments, the plaintiff is the legally wedded wife of the defendant and that their marriage was solemnized on 15.5.1986 at Arya Samaj, V V Puram, Bangalore, in accordance with the Hindu rites. To evidence the same, the plaintiff produced the photographs taken at the time of marriage and also the certificate issued by the Arya Samaj, Bangalore. According to her, after the marriage she lived with the defendant at Bapujinagar, Bangalore, and on account of the harassment meted out to her by the defendant, she suffered abortion twice and even then the defendant did not care to maintain the plaintiff. In the first week of October, 1998, the plaintiff came to know that the defendant is having an extra marital affair with a lady by name Renukamma and which resulted in she lodging a complaint at Bytarayanapura Police Station against the defendant and Renukamma on 11.8.1998. Thereafter, on 15.10.1998, taking advantage of lodging a complaint by the appellant against the respondent, she was thrown out of the house in the mid night of 15.10.1998 and a case been registered against the respondent for the offence punishable under Sections 498-A, 323, 324 and 506-B r/w Section 34 of IPC in Crime No.497/1998 on the file of Bytarayanapura Police, contending that she has no means to maintain herself. She filed the Suit claiming maintenance at the rate of Rs.2,000/- per month. It is also her case that the respondent/husband is well off and having two premises and in one premises, he is having 23 tenements and in another premises he is having 8 tenements and earning good rent from both the houses and in addition to that he is also running upholstry business under the name and style of Komal Upholstry Works at Kalasipalyam and earning Rs.10,000/- per month. Since an attempt was made by the defendant to sell the properly, injunction was also sought by her.

5. The respondent/defendant contested the Suit. He denied his relationship with the plaintiff. According to him, he married one Renukamma on 16.11.1980 at Andra Devanga Choultry, Gandhinagar, Bangalore, and out of their wedlock, he is having two daughters, who are aged about 15 and 13 years, respectively. According to him, the complaint lodged by the wife against him and Renukamma before the Byatarayanapura Police is false one. In the circumstances, he requested the Court to dismiss the Suit on the ground that the plaintiff. being not a legally wedded wife, cannot file a Suit for maintenance.

6. Based on the above pleadings, the following issues were framed by the trial Court:

(1) Whether the plaintiff proves that she is the legally wedded wife of the defendant ?

(2) Whether the plaintiff proves that the defendant has neglected to maintain her ?

(3) Whether the plaintiff proves that she is entitled for maintenance at Rs.2,000/- p.m. from the date of the suit ?

(4) Whether the plaintiff proves that the defendant is intending to alienate the plaint schedule property for defrauding her right for maintenance ?

(5) Whether the plaintiff is entitled for an order of injunction ?

(6) What decree or order ?

7. In order to prove their respective contentions, the plaintiff got herself examined as P.W 1. She also relied upon Exs.D-1 to D-6. The trial Court, considering the evidence led in by the parties, held issue Nos.(1), (3) and (5) in the negative and issue Nos.(2) and (4) in the affirmative. The Suit of the plaintiff came to be dismissed on the ground that though the plaintiff has proved her marriage with the defendant, she cannot be considered as a legally wedded wife in view of Renukamma was taken in marriage by the defendant at the earliest point of time. Accordingly, the Suit came to be dismissed by the judgment and order dated 6th of February, 2006. This order is called in question in this Appeal.

8. The learned Counsel for the appellant contends that the trial Court has committed a serious error in dismissing the Suit of the plaintiff. According to him, at the time of marriage, the plaintiff/appellant was not aware of the marriage of the respondent with Renukamma. As a matter of fact, the defendant has given a false declaration before Arya Samaj to the effect that he was un-married and by playing a fraud on the plaintiff/appellant, the defendant has taken the plaintiff in marriage and the marriage has been solemnized. The trial Court, having accepted the marriage between the plaintiff and defendant, has dismissed the Suit for grant of maintenance only on the ground that the plaintiff is not a legally wedded wife. According to him, even if the plaintiff cannot be considered as a legally wife and when the plaintiff has been defrauded by the defendant in marrying her, she is entitled to claim maintenance in view of the judgment of the Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga, (2005)1 DMC 1 (SC) : [2005(5) ALL MR 159 (S.C.)]. Therefore, he contends that the trial Court did not consider the judgment of the Hon'ble Supreme Court properly and even if the marriage between the appellant and the defendant is considered to be a second marriage, as the defendant did not disclose the earlier marriage and as the plaintiff is not being maintained by the defendant, the plaintiff is entitled to claim maintenance from the defendant. In circumstances, he requests the Court to allow the Appeal.

9. Per contra, Mr. Murali Mouni, relying upon the judgment of the Andhra Pradesh High Court in Abbayolla M. Subba Reddy Vs. Padmamma (AIR 1999 AP 19) contends that since the marriage between the appellant and the respondent is not a legal marriage, the plaintiff's Suit has been rightly dismissed by the trial Court. Therefore, he requests the Court to dismiss the Appeal.

10. Having heard the learned Counsel for the parties, We have to consider the following two points in this Appeal:

(i) Whether the plaintiff is entitled to claim maintenance ?

(ii) If so, what is the amount to be awarded towards the maintenance of the plaintiff?

11. So far as the first point is concerned, though the defendant-respondent has taken up the contention that he has not married the appellant, the finding of the trial Court is that the marriage was solemnized between the plaintiff and defendant at Arya Samaj on 15.5.1986. The documents produced by the plaintiff further disclose that the parties lived together from 1986 to 1998. The defendant, having lived with the plaintiff for more than 12 years, has forcibly driven out the plaintiff from his house on 15.10.1998. It is the specific case of the plaintiff that the marriage between Renukamma and the defendant was not made known to her and if the marriage between Renukamma and the defendant was disclosed to her, she would not have married the defendant. The conduct of the defendant discloses that his evidence cannot be disbelieved, the demeanour of the witness has been noted by the trial Court. The defendant went to the extent of denying his marriage photos. But, the learned Judge, who recorded the evidence. has noted in the deposition sheet that purposely the defendant is telling lie. By looking into the photographs produced by the plaintiff in the case and when we compare the parties, who are present in the Court Hall at the time of arguments, we are satisfied that the respondent has married the plaintiff. Even otherwise, the finding of the trial Court in regard to the marriage between the plaintiff and defendant has not been questioned by the defendant. Even though the said finding is adverse to the defendant, the defendant has not filed any cross-objections. Even if cross-objections are not filed, the defendant has not made use of the provisions of Order 41, Rule 22 of C.P.C. In the circumstances, photographs of marriage between the plaintiff and defendant has to be confirmed by us.

12. Now, the only question is that if the plaintiff is considered as a second wife of the defendant, whether the plaintiff can file a Suit for maintenance. In a similar circumstance, the Hon'ble Supreme Court had an occasion to examine that when a second marriage was questioned, to declare the second marriage as an illegal and in contravention of the Act, the Hon'ble Supreme Court still granted maintenance by invoking Section 25 of the Hindu Marriage Act. Section 25 of the Hindu Marriage Act can be pressed into service when a Petition is filed under any one of the provisions of Hindu Marriage Act. It is also treated that if during the subsistence of the valid marriage, a second wife cannot be taken in marriage and such marriage has to be treated as not a valid marriage or a legal marriage. If the Supreme Court has held that the second wife is entitled for a permanent alimony, it cannot be ruled out that she cannot claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

13. It may not be relevant to note that in the decision of the Andhra Pradesh their Lordships have held that a second wife is not entitled to claim maintenance when the Hindu male having legally wedded wife, but by looking into the provisions of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, we do not see the word 'legally wedded wife' under Section 18 of Hindu Adoptions and Maintenance Act, 1956. Therefore, it would be relevant for us to extract Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

"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) 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 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) it 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 her living separately.

(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."

14. By looking to the provisions of Section 18 of the Act, a wife, who has been neglected by her husband, is entitled to seek maintenance. Even in the instant case, even though the appellant/plaintiff has to be treated as second wife. We are of the opinion that the defendant having lived with her for more than 12 years cannot escape to maintain the plaintiff. By respectfully following the judgment of the Supreme Court in Ramesh Chandra Rampratapji Daga's case. We are of the opinion that the finding of the trial Court has to be set aside by holding that the appellant is entitled to claim maintenance. Accordingly, we answer point No.(i) in favour of the appellant.

15. So far as point No.(ii) is concerned, admittedly the Suit is of the year 1998. During the year 1998, the plaintiff has claimed maintenance at the rate of Rs.2,000/- per month. But, considering the cost of living as on today, the plaintiff cannot maintain with the aforesaid meagre amount. The plaintiff has established before the Court by producing the documents that the defendant is a man of means. The records produced by the plaintiff disclose that he is having two houses and one of the houses has been transferred to his sister-Hemavathi after granting injunction in violation of the order of injunction. In addition to that the documents further show that he was running a business of upholstry under the name and style of Komal Upholstry Works at Kalasipalyam, which is known for the said business. Even according to the respondent/defendant that two brothers of the appellant were working under him, which itself discloses that he is running the business smoothly and was getting sufficient income. Since no evidence is led in by the defendant in regard to his income, we are of the opinion that we have to award the maintenance at the rate of Rs.2,000/- per month as claimed by the plaintiff. We are of the opinion that it is open for the appellant/plaintiff to file one more Suit for enhancement of maintenance as the said amount of Rs.2,000/- would not be sufficient to meet both the ends.

16. In the result, the Appeal is allowed. The judgment passed by the II Addl. Principal Judge, Family Court at Bangalore, dated 6th of February, 2006 passed in O.S. No.213/1998 is set aside by decreeing the Suit filed by the appellant, holding that she is entitled for maintenance at the rate of Rs.2,000/- per month from the date of filing the Petition and a charge is also created on the properties mentioned in the Plaint.

The parties to bear their costs.

Appeal allowed.