T. P. K. NATESAN CHETTIAR Vs. ACHIYAYEE AMMAL

JUDGEMENT

(1.) THE defendant, against whom a decree for maintenance was passed by the learned Subordinate Judge, Tiruchirapalli, in O.S. No. 374 of 1967 on the file of his Court, is the appellant and the plaintiff therein is the cross -objector. Admittedly, the defendant married the plaintiff in the year 1945 according to Hindu Sastras and they lived together as husband and wife for about three years. The plaintiff conceived through the defendant and delivered a female child and it is the plaintiff's case that about 8 months after she gave birth to the child called Jaya, the defendant beat her and drove her out of the house. The reason for the ill -treatment, according to the plaintiff, is that the defendant, sought her consent and permission to take a second wife and when she did not oblige him by giving her consent to the second marriage, the defendant became enraged with her and resorted to beating and ill -treating her. After driving out the plaintiff, the defendant is said to have married one Neelambal, as his second wife in the year 1953 at Karaikal and brought over the said Neelambal to his house in order to lead life with her. The plaintiff averred that by reason of the cruel treatment meted out to her by the defendant and by reason of his taking a second wife, it was no longer possible for her to return to her marital home and spend the rest of her life under the care and protection of the defendant, and would even go to the extent of saying that she genuinely apprehended danger to her life if she were to seek umbrage in her husband's house. The plaintiff thus justified her living away from her husband. She prayed for a decree for maintenance and raiment, and, alleging that the husband was possessed of immovable properties as well as valuable movables in the form of jewels, cattle, shares in business etc, besides possessing liquid cash of considerable magnitude and also having an income of Rs. 5000 per mensem from out of two ricemills owned by him, the plaintiff wanted that she should be granted maintenance at the rate of Rs. 150 per month and Rs. 25 per month for separate residence and Rs. 200 per month for wearing apparel.

(2.) VARIOUS defences were raised by the defendant to resist the action of the plaintiff. But, even at the outset, it may be stated that the defendant did not deny having married Neelambal as his second wife, but only contended that such marriage did not take place in the year 1953 and at Karaikal as alleged by the plaintiff, but that it took place on 9 -2 -1949 and at Seppalapatti. The defendant denied having sought the permission and consent of the plaintiff for marrying again or having ill -treated the plaintiff when she refused to give consent therefor. White denying the plaintiffs contention that he drove her out of the house, the defendant would put forth a counter -version that it was the plaintiff who, of her own volition, went away from the marital home and that she even abandoned her eight months old child when she left the house. After making some averment to the effect that the plaintiff took away with her valuable items of jewels provided by him. the defendant would contend that as separation was brought about by the plaintiff of her own accord, she was not entitled to separate maintenance and, in any event, to lay any claim for past maintenance, as, by her sustained inactivity far a long number of years, she had raised a legitimate presumption in his mind that she had abandoned her claim for maintenance. With regard to the quantum of maintenance, the defendant pleaded that, through his second wife, he had as many as eight children and that therefore, he had to support not only the second wife, but all the eight children born through her as well as his daughter, Jaya, whom the plaintiff had abandoned when she deserted him and went away to her parents' house. The defendant also denied having a large sum of cash and outstandings payable to him and stated that if at all the plaintiff was to be granted a decree for maintenance, a grant of Rs. 35 per month would be a just and reasonable one, and that too, only as future maintenance.

(3.) AFTER a careful consideration of the evidence, the learned trial Judge came to the conclusion that the plaintiff had not proved the defendant meting out ill -treatment and cruelty. On the question of the second marriage, be held that the defendant's marriage with Neelambal must have been celebrated only on 9 -2 -1949, and not in the year 1953, as was contended by the plaintiff, and that by reason of such second marriage, the plaintiff became entitled to separate residence and maintenance. With regard to the quantum of maintenance, the learned Subordinate Judge awarded maintenance at the rate of Rs. 75 per month and a further sum of Rs. 10 per month for clothing. He rejected the claim of the plaintiff for provision for separate residence as she was found to be living with her parents. With reference to the claim for past maintenance, he held that the dormant attitude exhibited by the plaintiff for a period of nearly 17 years disentitled her from claiming past maintenance for any appreciable length of time and therefore, awarded her past maintenance only for about one month from the date she issued her suit notice, Ex. A -1. A charge was also created on items 1 to 3 of the plaint B schedule for the maintenance granted to the plaintiff. It is as against this judgment the defendant has preferred the appeal. Aggrieved by the non -grant of past maintenance for a longer period and the grant of maintenance at only Rs. 75 per month instead of the sum of Rs. 150 claimed by her, the plaintiff has preferred the memorandum of cross -objections.