AHER MENSI RAMSI Vs. AHERANI BAI MINI JETHA

JUDGEMENT

(1.) This is defendant's First Appeal against the judgment and decree passed by the learned Civil Judge (Senior Division), Junagadh in Special Civil Suit No.79 of 1994 on 15th November 1978.

(2.) From the contents of the impugned judgment, it appears that the present appellant, namely, Aher Mensi Ramsi and respondent herein, i.e. Aherani Bai Mini Jetha had married 35 years prior to the year 1974, i.e. some time in the year 1939. In the year 1974, when the husband was aged 54 years and the wife, i.e. respondent herein at the age of 51 years filed Special Civil Suit No.79 of 1994 in the Court of Civil Judge (Senior Division), Junagadh, claiming maintenance with charge on the properties of the defendant-husband. The wife, i.e. respondent herein, through the aforesaid suit claimed an amount of Rs.250.00 per month under the provisions of the Hindu Adoption and Maintenance Act, 1956. In the suit, the case of the wife, i.e. plaintiff (respondent herein) was that she had married the present appellant as per Hindu rites and custom at village Arena, Taluka Mangrol about 35 years back. After about five years of her marriage, she was sent to her husband's place and that she was staying with her husband at village Danderi Taluka Malia-Hatine. It was further the case that out of this wedlock with the present appellant, two issues were born - one was daughter Bai Jeni and an other one was a son who expired at the age of 1 and 1/2 month. It was further stated that her husband, i.e. present appellant used to torture and beat her. It was also alleged that her husband had illicit relations with one woman named Bai Bheni alias Ameri and the same was objected to by the respondent herein and thereupon the appellant turned her out of the house, again called her with assurance to keep her nicely and yet, behaved with her with the same attitude as earlier and when she informed her father, her father took her back to village Arena. Thereafter the husband never called her and he used to live with Bai Bheni and that at the time when the suit was filed, he was yet living with Bai Bheni at his house. Thus, the wife, i.e. respondent herein was neglected and left uncared for and the appellant had refused to maintain her and the daughter. She, therefore, filed an application in the year 1953 under Section 488 of the Code of Criminal Procedure (old) i.e. Misc. Application No.31 of 1953 and in those proceedings, the husband had agreed to pay the maintenance at the rate of Rs.15.00 per month and the order was passed accordingly by the Court. The wife was staying at her father's place for about 25 years, but her husband did not care. Later on, the daughter Bai Jeni had been married to one Rambhai Govind about 8 years prior to the time when the suit was filed in the year 1974. The wife while filing the Civil Suit has also stated that in Cri.Misc. Application No.31 of 1953 a sum of Rs.15.00 per month had been granted to her as maintenance under Section 488 of old Cr.P.C. but such amount being too meagre she had again applied before the Court of First Class Magistrate, Veraval, in the year 1973 through Misc. Application No.54 of 1973 under Section 489 of the Code of Criminal Procedure (old) in which the husband agreed to increase the maintenance amount to the tune of Rs.45.00 per month which was to be paid in two instalments in a year. The husband, in order to defeat her rights in the properties held by the defendant, wanted to mutate the name of Bai Bheni in the revenue record and therefore, the respondent herein gave a notice by Regd. Post on 2.11.1973. The husband did not care for the same, on the contrary, tried to assassinate the wife's character and had also filed a suit for divorce against her on the ground of adultery through Hindu Marriage Petition No. 68 of 1973, but the said suit for divorce was dismissed. The wife-respondent then filed a case of defamation against her husband, the appellant and in that case, the appellant was punished with a fine of Rs.500.00. The respondent herein, i.e. wife filed the present Special Civil Suit in the year 1974 (Special Civil Suit No.79 of 1974) claiming that the amount of maintenance of Rs.45.00 per month was not at all sufficient for her maintenance in the days of hardship and dearness and therefore, she claimed the amount of Rs.250.00 per month under Section 18 of the Hindu Adoption and Maintenance Act, 1956 along with the prayer that charge of her maintenance be kept on the properties of the defendant, otherwise the defendant may transfer the properties and in that case it would be difficult for her to get the maintenance. It was further alleged by her that her husband, i.e. the appellant herein was a well-to-do person, was having sufficient funds and was in a position to pay the maintenance of Rs.250.00 per month, that he was having 100 Bighas of valuable and fertile land, was having four houses at village Danderi, the said properties were ancestral properties, that he was also having good amount in cash, ornaments, cattle and two electric machines. In sum and substance, it was alleged that he was having movable and immovable properties worth Rs.3 lacs. The aforesaid suit was resisted by the husband by filing a written statement in which various contentions were taken. However, the factum of marriage between the parties was admitted and the allegations of torture etc. were denied. It was also denied that Bai Jeni was his daughter. It was also denied that he was having any illicit relations with Bai Bheni and it was pleaded that Bai Bheni was his legally wedded wife and that the lands were mutated in her (Bai Bheni) name since long, it was also denied that the plaintiff would require Rs.250.00 per month as maintenance and it was also denied that the properties in his possession were ancestral properties and it was pleaded that such properties were his self-acquired properties.

(3.) On the basis of the pleadings of the parties, the following Issues were framed by the trial Court: