M VASUNTHARADEVI AMMAH Vs. DRCMRAMAKRISHNA NAIDU

JUDGEMENT

(1.) The plaintiff is the wife of the defendant. The suit originally comprised two claims, a claim for maintenance and a claim for recovery of certain articles set out in schedule A to D to the plaint or their value. Soon after the institution of the suit, most of the articles claimed were delivered to the plaintiff and she has not pressed her claim as regards the rest. The trial was therefore confined to her claim for maintenance. The suit was instituted on the 24 January, 1947. The plaintiff claims arrears of maintenance at Rs. 200 a month from 1 October, 1944, up to the date of the institution of the suit and future maintenance at the same rate. The plaintiff is the daughter of a retired Assistant Surgeon in the medical department of the Government of Madras and she is a Graduate. The defendant is the only son of a retired medical officer employed by the Corporation of Madras. He received medical education in Great Britain and at the time of the suit he was employed as a medical officer to the Madras Electric Supply Corporation, Ltd., and the Madras Electric Tramways, Ltd. The parties are Hindus.

(2.) The plaintiff was married to the defendant on 3 July, 1942. She joined her husband and commenced living with him in his house from August, 1942. It is common ground that she continued to live with her husband in his house till June or July 1943. In June or July, 1943, she went to her father's house which according to the evidence is about two furlongs from her husband's house and she never again returned to her husband's house to stay with him. In June 1943, the defendant's mother fell seriously ill and she was admitted into the Stanley Hospital, Royapuram, where she remained for nearly a month. The plaintiff went with her husband to visit her mother-in-law once in the hospital but admittedly she did not stay with her husband in his house during the time her mother-in law was in the hospital. From July 1943, till about the end of December, 1943, the plaintiff and the defendant did not live together as man and wife. In January, 1944, it is again common ground that on account of the intervention of P. W. 2, Mr. Venugopal Naidu, a pleader practising at Erode and the husband of the plaintiff's cousin, the defendant began to regularly visit the plaintiff in her father's house. According to the evidence the defendant did not remove himself from his house and go to live with his wife in her father's house but he admits that he was meeting the plaintiff practically every day and sleeping every night in her father's house. He was also taking his food there almost regularly though he kept most of his clothes and other belongings in his parents house. This state of affairs went on till about October 1944, when there was certainly a quarrel between the plaintiff and the defendant. There is conflict of evidence as to why and over what the plaintiff and the defendant quarrelled, but it is admitted by both sides that after October, 1944, the defendant ceased to visit the plaintiff in her house. Some time in January,1945, the plaintiff did go once to her father-in-law's house. She went with her uncle and aunt of whose object there can be no doubt, namely, to invite the defendant and his parents to a marriage. The plaintiff left with her uncle and aunt and did not stay away in her. husband's place. Thereafter she never left her father's place up to date. On 1 September, 1946, the defendant married again. On 11 October, 1946, under instructions from the plaintiff her advocate called upon the defendant to pay her maintenance, past and future, and return the articles set out in the notice. The defendant appears to have met the plaintiff in person after the receipt of this notice ; but the parties are not agreed as to what exactly happened at the interview. On the 1oth November, 1946, the defendant replied through his advocate to the demand made in the plaintiff's notice of the nth October, 1946. In his reply he stated that the plaintiff was at liberty to take the articles together with a pass book belonging to her and that he was ready and willing to take her back if she would come and live with him and if she was not willing to that course, he would provide her with residence and arrange for her comforts and was prepared to pay her Rs. 50 a month from 1 November, 1946. On the 27 November, 1946,the plaintiff's advocate acknowledged this reply by the defendant's advocate and stated under instructions from the plaintiff that the offer made as regards maintenance was inequitable and not fair and that the plaintiff was compelled to seek redress in a Court of law. The defendant was also called upon to deliver the articles to the advocate on behalf of the plaintiff. After the exchange of these notices, on the 23 December, 1946, the defendant addressed directly a letter to the plaintiff in which he withdrew his offer of Rs. 50 per month as well as the offer to deliver the articles claimed by her. The plaintiff replied to this letter on the 8 January, 1947, reiterating her claim and finally the suit was instituted as already mentioned on the 24 January, 1947.

(3.) The plaintiff's claim for maintenance was based on three grounds. She alleged cruelty on the part of the defendant and his parents, abandonment and desertion by the defendant and the second marriage of the defendant. Paragraph 12 of the plaint sums up her case as follows: The plaintiff therefore states that by reason of acts of cruelty against her so as to render it unsafe or undesirable for her to live with the defendant and by reason of her being completely neglected and deserted by the defendant at any rate from October 1944 if not earlier, without her consent and against her wish and ultimately by reason of the defendant taking another wife, the plaintiff is entitled to claim separate maintenance against the defendant. It is quite clear that so far as the third ground is concerned, her right, if any, could only commence from the date of the second marriage, that is, 1 September, 1946, and this ground can only be supported by the provisions of Section 2 of Act XIX of 1946, which came into effect on the 23 April, 1946. It is therefore necessary to determine whether the facts established by her entitle her to claim provision for separate residence and maintenance from 1 October, 1944, and also to determine whether under the provisions of the Act she would be entitled from 1 September, 1946.