MADANVALI Vs. BALU PADMANNA TAMADADDI

JUDGEMENT

(1.) The appellant (plaintiff) sued the respondent (defendant) her husband to recover a sum of Rs. 4,320/- as arrears of 6 years' past maintenance. She also prayed for a decree for future maintenance, at the rate of Rs. 60/- per month. They were married about 18 years prior to the suit. For some time they lived cordially. The appellant has no issued. In about 1942-43, the respondent took a second wife. It is now admitted that even after the second marriage, the appellant lived with her husband for about two years. Ever since then she has been living separately with her parents. According to the appellant, she was treated cruelly by her husband; she was assaulted by him a number of times; and hence it was not possible for her to live with him. She further pleads that he deserted her. On the basis of these allegations, she claimed separate maintenance as mentioned above. She also contends that she is entitled to the separate maintenance claimed in view of section 2(4) of the Hindu Married Women's Right to Separate Residence and Maintenance Act 1946 (Act XIX of 1946) (which shall be hereinafter called the Act), as her husband has taken a second wife. The Court below held that the cruelty and desertion pleaded is not proved. It further came to the conclusion that section 2(4) of the Act does not apply to the facts of the present case, as the marriage in question had taken place prior to the commencement of the Act. Aggrieved by this decision the appellant has come up in appeal and in this Court she has reiterated her contentions advanced in the Court below. It is further urged that after the disposal of the present suit by the trial Court, the Hindu Adoptions and Maintenance Act, 1956 has come into force on 21-12-1956 and consequently she is entitled to separate maintenance at least from the date on which that Act came into force. According to the plaintiff, the annual net income of the defendants, is about Rs. 4,000/- to 5,000. It is contended on her behalf that on taking the net annual income as well as the needs of the plaintiff into consideration, she is entitled to get maintenance at the rate of Rs. 60/- per month. On the question of the rate of maintenance, the Court below after an examination f all the evidence before it has opined that the net annual income of the defendant is about Rs. 1,800/and if the plaintiff is entitled to separate maintenance, the proper rate would be Rs. 20/- per month. The plaintiff challenges this conclusions as well.

(2.) From the foregoing it is seen that following questions arise for determination in this appeal, i.e. (1) Is the plaintiff entitled to any separate maintenance on the ground that the defendant had been guilty of cruelty to her or that he deserted her? (2) Is she entitled to the separate maintenance under section 2(4) of the Act? (3) In any event, is she not entitled to separate maintenance at least from the date the Hindu Adoption and Maintenance Act, 1956 came into force i.e. 21-12-1956? and (4) What is the proper rate of maintenance?

(3.) We are in agreement with the Court below that the plaintiff's allegations that the defendant was guilty of cruelty to her or that she was deserted by him is not proved. It is in evidence that the plaintiff is living separate from her husband from about 1944. The present suit was filed only in 1955. It is not satisfactorily proved that the plaintiff had demanded separate maintenance at any time prior to the suit. In the course of her cross-examination she admitted that she did not inform any one till the institution of this suit, about the beatings she now complains, nor did any one witness to those bearings. Her evidence available is hardly sufficient to find in her favour. Equally insufficient is the evidence relating to desertion. The defendant in the course of his evidence has offered to take back the plaintiff and according to him he was always willing and anxious that she should live with him. The plaintiff has categorically stated in her evidence that she is not willing to reside with the defendant. We see no reason to differ from the conclusions of the trial Court that the desertion pleaded is not true. From the available circumstances in the case, it is clear, that the plaintiff was either inconvenienced or irritated by her husband taking a second wife and that was the reason why she left her husband's house and protection.