ATHINARAYANA PERUMAL NADAR Vs. THANGAPPAZHAM NADACHI

JUDGEMENT

(1.) THE 1st defendant is the appellant in A. S. 306 of 1952. THE plaintiff is the 1st defendant's second wife. THE 1st defendant's first wife is the 2nd defendant. THE parties are Hindus governed by the Hindu mithakshara law. THE plaintiff was married by the 1st defendant in Mithunam 1118. After the marriage the plaintiff lived with the 1st defendant only for three months. She could not continue any longer to reside with him because he molested her in several ways, caused bodily hurt to her, removed all her ornaments described in the plaint B schedule, disposed of them and then drove her out of his house in Thulam 1119. She was therefore living with her father in his house. THE value of the plaint B schedule ornaments was Rs. 3,071. THE plaint A schedule properties were those belonging to the 1st defendant. THE 1st defendant had not offered to take the plaintiff back and maintain her though her father and other members of her village tried their best to pursuade him to do so. He did not take her back nor did he give her any maintenance. THE income from the plaint A schedule properties would be Rs. 500 a year and so the plaintiff was entitled towards the maintenance at the rate of Rs. 20 a month. THE 1st defendant had executed certain documents in favour of the 2nd defendant in order to defeat the plaintiff. THE plaintiff therefore prayed for a decree for maintenance at the rate of Rs. 20 per mensem from the 1st defendant and the plaint schedule properties. In the body of the plaint she had also prayed for a decree for Rs. 3,071 and interest on account of the value of the ornaments said to have been removed by the 1st defendant and appropriated by him. THE suit had been filed in forma pauperis and though the suit had been valued to include the value of the ornaments also there was no prayer in the relief column regarding the same. It had been made the subject matter of an issue and the court below had also entered a finding.

(2.) DEFENDANTS 1 and 2 filed a joint written statement in which all the allegations about the cruelty towards the plaintiff were denied. It was contended that the plaintiff of her own accord left the 1st defendant and was living with her father, that the 1st defendant had not driven her out at the instigation of the 2nd defendant, that the plaintiff used to go to her father's house and live there frequently, that the 1st defendant was quite willing to keep her with him and maintain her if only she would return to him, that neither the plaintiff's father nor anybody had pursuaded him to take her back, that the 1st defendant had requested the plaintiff several times to return to him, that she refused to comply with the same, that as the plaintiff was living away from him without lawful excuse she was not entitled to separate maintenance, that the plaintiff had not been presented with any ornaments by her parents, as they were not in a position to give her any ornaments, that the 1st defendant himself had presented the plaintiff with some ornaments which she took with her when she went to her father's house that the income from his properties would only be Rs. 200 per annum, that the same was found insufficient for his maintenance, that even if the plaintiff was entitled to separate maintenance she could not get more than Rs. 5 a month, that he (the 1st defendant) had filed O. S. 24 of 1125 in the District Court, Nagercoil for restitution of conjugal rights and that the present suit filed by the plaintiff for maintenance was not supported by any bona fides.

(3.) THE only allegation justifying the wife's claim for maintenance was in paragraph 4 of the plaint. It was stated there that the plaintiff lived with the 1st defendant for three months after their marriage, that at the instigation of the 2nd defendant, the 1st defendant used to molest her besides causing bodily hurt, that the 1st defendant had obtained from the plaintiff all her ornaments and sold the same, that, thereafter, the plaintiff was turned out of the 1st defendants' house and that the plaintiff was living in her father's house from Thulam 1119. So what was alleged was habitual cruelty and the appropriation of the plaintiff's jewels by the 1st defendant. It was stated that after all the ornaments were sold the plaintiff was turned out of the 1st defendant's house. It has to be mentioned at the very outset that there is absolutely no evidence as to the habitual cruelty alleged. THE plaintiff had examined to independent witnesses P. Ws. 2 and 3 on her side. P. W. 2 had stated that the plaintiff was living in her father's house as the 1st defendant had assaulted her somewhere in 1119. He stated that on that day the 1st defendant beat the plaintiff and pushed her down by fisting her neck. THE cause for the quarrel was stated to be the plaintiff's unwillingness to part with her ornaments as desired by the defendants Evidently therefore the plaintiff was driven out of the house because she refused to part with her ornaments. Thus his evidence in the chief examination would indicate that the plaintiff had taken all her ornaments when she left the 1st defendant's house. In cross-examination he stated So the ornaments were wrested by force by the 1st defendant on the day prior to that on which she was driven away. THEn he would say This version of P. W. 2 is against the plaintiff's case in the plaint. As mentioned already the plaintiff had stated that after the 1st defendant got all her ornaments from her and sold the same, she was driven out of his house. P. W. 3 also would give a version like P. W. 2. According to him, and to a leading question he said that he was present when this happened. This witness therefore does not support the plaint allegations. THE plaintiff as P. W. 1 stated that on a date in Thulam 1119, the 1st defendant beat her severely. When she became unconscious, her ornaments were removed by force by defendants 1 and 2, that they closed the door immediately, that this happened at 4 P. M. , that they opened the door only the next morning when the plaintiff was seen there and that the 1st defendant then drove her away by showing a stick. THEre is therefore absolutely no truth in the plaint allegations. THE allegation itself is vague and indefinite. THE plaint does not give any instance of habitual cruelty except the one relating to the day on which the plaintiff was driven away. With such meagre evidence relating to habitual cruelty it is unsafe to accept the plaintiff's case for separate maintenance. P. Ws. 2 and 3 had stated that they saw the wresting of the ornaments by the 1st defendant from the plaintiff's body. THE lower court had not believed them on this point. It was also stated that they had attempted to bring about a reconciliation at the instance of the plaintiff's father. THE plaintiff would say that the persons who attempted at this were one Chellayya and Chuppayya. P. Ws. 2 and 3 could not therefore be relied upon to prove the plaintiff's case. THE plaintiff has failed to substantiate her case.