VISHWANATH Vs. LACHHANI DEVI

JUDGEMENT

(1.) THIS is a defendant's second appeal in a suit filed by the plaintiff -respondent No. 1, Smt. Lachhani Devi and plaintiff respondent No. 2, Suresh, the minor son, for recovery of Rs. 1500/ - as arrears of maintenance from defendant -appellant from August 1979 till the institution of suit at the rate of Rs. 250/ - P.M. and for recovery of Rs. 10,250/ - as price of ornaments. The suit was filed with the averments that plaintiff -respondent No. 1, Smt. Lachhani Devi was married to Vishwanath, the defendant -appellant and lived with him for few years and performed her marital obligations and a son, namely, Suresh was born, but the defendant appellant later on turned her and her son out of his house and refused to maintain her and the minor son, and did not return her ornaments nor paid its price. Consequently the cause of action for the suit arose. The defendant appellant contested the suit denying the plaint allegations including that plaintiff -respondent No. 1 was married to defendant No. 1 and that the plaintiff -respondent No. 2 was the son of defendant No. 1. The defendant No. 1 has kept the ornaments of the plaintiff -respondent No. 1 and it was urged that plaintiff -respondent No. 1 was married with some body else.

(2.) SUIT was decreed on 20 -5 -1981 and the first appeal was partly allowed on 23 -12 -1983. The suit of plaintiff -respondent for past recovery of Rs. 1,200/ - as maintenance allowance was dismissed and for rest of relief the decree of trial court was maintained.

(3.) SRI Srish Prasad, the learned counsel for the respondents refuting the arguments of the appellant's counsel urged that the order of A.D.O. Panchayat was not considered but it was not a material piece of evidence. Further the findings recorded by the courts below that plaintiff No. 1 was married to defendant No. 1 and that a son Suresh was born out of their wedlock and the plaintiff No. 1, the appellant has refused to maintain her are findings of fact, based on appraisal of evidence on record. The findings are findings of fact and need no interference. Further in view of Section 167 of the Indian Evidence Act, 1872 (in short the Act), if some improper admission or rejection of evidence is made in respect of civil or criminal case, that itself would not justify the remand, new trial or reversal of decision of court below if the court before which such objection is raised takes the view that independent of the evidence objected to there was sufficient evidence to justify the decision or if the rejected evidence is received that would not have varied the decision, plaintiff Smt. Lachhani Devi had clearly stated that she was married to Vishwanath according to Hindu rites and 'PHERE PARE THEY'. Similarly (P.W. 2) Ram Chandra Rai is the Pradhan of the village. He was also present at the time of marriage. (P.W. 3) Ram Dutt was also present at the time of marriage (P.W. 4) Badri is the elder brother of plaintiff -respondent No. 1 and according to him plaintiff was married according to Hindu Dharma. The findings about marriage, are the findings of fact. The second appeal has no merit.