IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
RSA No. 417 of 2005.
.
Reserved on : 08.05.2018.
Decided on : 14th May, 2018.
Sukhdev …..Appellant/defendant.
Versus
Smt. Satya Devi Ors.
Coram:
r to
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
….Respondent/Plaintiff.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Dinesh Bhanot, Advocate.
For Respondent No.1: Mr. Dinesh Bhatia, Advocate.
For Respondents No.2 3: Nemo
Sureshwar Thakur, Judge.
The plaintiffs’ suit, for, rendition of a decree, for
grant of maintenance @ Rs.500/- per mensem against
defendant No.1/appellant herein, stood dismissed, by the
learned trial Court. In an appeal carried therefrom,
before the learned First Appellate Court, by the plaintiff,
1
Whether reporters of the local papers may be allowed to see the judgment?
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.
the latter Court allowed his appeal besides obviously
reversed the trial Court’s judgment and decree.
2. Briefly stated the facts of the case are that the
plaintiffs had instituted a suit as indigent person for
grant of maintenance at the rate of Rs.500/- per month
against defendant No.1 with the allegations that the
plaintiff is legally wedded wife of defendant No.1, and, a
son namely Ram Kishan has been born to the plaintiff out
of this wedlock. The plaintiff and defendant No.1 earlier
resided at village Dhela and defendant No. got estranged
with the plaintiff as he wanted transfer some land in his
favour on the part of grand mother of the plaintiff to
which she did not agree. Thereafter, the plaintiff started
residing with her brother alongwith her son and she spent
on the eduction of her son Ram Krishan. Shri Ram
Krishan was settled in village Koli Majra. On the
intervention of Ram Rakha a close relation of the parties
in the year 1988, he constructed a residential house
there. Thereafter, the defendants started harassing Shri
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Ram Krishan on one pretext or the other to compel him to
leave his residential house and property which was
ancestral. The plaintiff has been visiting the residential
house of defendant No.1 and her son off and on and has
been requesting defendant No.1 to secure conjugal home
to maintain her as his wife. Defendant No.1 has been
playing in the hands of defendants No.2 and 3 and is
adamant and threatened to kill her. Defendant No.1
willfully neglected and abandoned the plaintiff without
reasonable cause and efforts of the plaintiff and her
relatives for the last more than 30 years to reconcile the
matter have gone futile. The plaintiff has no source of
income. Defendant No.1 has sufficient income from the
land measuring 14 bighas 14 biswas i.e. (a) land
measuring 9 bighas 12 3/5 bighas being 1/5th share of
land measuring 48 bighas, 3 biswas, comprised in khewat
No.43, Khatauni No. 45, Khasra Nos. 68(12-17) bighas,
89 (12-10) bighas, 69 (0-4) B, 132 (10-14) B, 265/142 (0-
9) B, 268(0-11) B, 270/150(0-10) B, 148 (1-15)B, 149 (1-
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8) B, 154 (4-13) B 153 (2-11)B, (b) land measuring 12
biswas being 1/5 th share of land measuring 3 bighas
comprised in Kh/Kh NO. 40/41, bearing Khasra No. 285
(3-0) B and (c) land measuring 4 bighas 9 1/3 biswas
being 1/3rd shar eof land measuring 13 bighas 8 biswas
comprised in Kh/kh
NO.42/43 bearing Khasra
390/229 (8-1) B 259 (5-7) B, situate in the area of
r Nos.
village Dasomajra, Prgana, Dharampur, Tehsil Nalagarh,
District Solan, H.P. The plaintiff is entitled to
maintenance at the rate of Rs.500/- per month.
Defendant No.1 was threatening to alienate the suit land.
So, the plaintiff has filed the suit for grant of
maintenance at the rate of 500/- per month by creating
charge on the suit land along with a decree for
permanent injunction restraining defendant No.1 from
alienating the suit land.
3. Defendant No.1 contested the suit and filed
written statement, wherein, he averred that Shri Ram
Kishan was not the son of defendant No.1. The plaintiff
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on the first night of marriage did not allow sexual access
to him and no sexual relations ever took place inter se
the plaintiff and defendant No.1 and the marriage was
never consummated. After the marriage, the plaintiff
always remained in village Dhela with her parents.
Defendant No.1 did not reside with her and he was
having land in village Koli Majra and there was o
necessity for him to have eyes on the land of the
grandmother of the plaintiff. Shri Ram Kishan was never
born from the loins of defendant No.1 and it was
incumbent on the parents of the plaintiff to give him
education. Shri Ram Kishan was not settled in Village Koli
Majra and he was working as Clerk in Jogindera Central
Co-op Bank Nalagarh and drawing salary of Rs.8000/- per
month and his wife was serving in Education Department
and she was also drawing Rs.6000/- per month. They are
living with the plaintiff. Shri Ram Kishan had also filed
suit against defendant No.1 for getting the land on the
grounds that the same was ancestral. Shri Ram Kishan
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and Ram Gopal got instituted the suit from the plaintiff.
Defendants No.2 and 3 brothers of defendant No.1 were
serving him. The plaintiff is living in village Dhela with
her parents for the last 30 years on account of her sweet
will. She did not have dispute with defendant No.1
unmarried man.
r to
Defendant No.1 was leading life like a bachelor and
The price of the land around Baddi
Industrial area had shot up and the plaintiff had dragged
him to the litigation in order to obtain land from him. The
plaintiff was not entitled to any maintenance and the suit
of the plaintiff was not maintainable.
4. The plaintiff filed replication, to, the written
statement of the defendant(s), wherein, he denied the
contents of the written statement, and, re-affirmed and
re-asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned
trial Court struck the following issues inter-se the parties
at contest:-
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1. Whether the plaintiff is entitled to
.
the maintenance from the defendant
and if so what amount?OPP.
2. Whether the plaintiff has no cause of
action to file the present suit? OPP.
3. Whether the plaintiff is estopped to
file the present suit on her act and
conduct and acquiescences ?OPP.
4.
r Relief.
6. On an appraisal of evidence, adduced before
the learned trial Court, the learned trial Court, hence,
dismissed the suit of the plaintiff/respondent herein. In an
appeal, preferred therefrom, by the plaintiff/respondent
herein, before, the learned First Appellate Court, the
latter Court allowed the appeal, and, reversed the
findings recorded, by the learned trial Court.
7. Now the defendant/appellant herein, has
instituted the instant Regular Second Appeal, before, this
Court, wherein he assails the findings recorded in its
impugned judgment and decree, by the learned first
Appellate Court. When the appeal came up for
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admission, on 12.8.2005, this Court, admitted the appeal
instituted by the defendant/appellant, against, the
judgment and decree, rendered by the learned first
Appellate Court, on, the hereinafter extracted substantial
questions of law:-
1. Whether in the facts and the circumstances
of the case, the appellant can be said to be
the guilty of treating the respondent No.1with such cruelty as to cause reasonable
apprehension in the mind and that it will beharmful or injurious for her to live with the
appellant?
2. Whether the son and the daughter-in-law of
the plaintiff are primarily responsible for hermaintenance in terms of the provisions of
the H.P. Old Parents Maintenance Act?
Substantial questions of Law No.1 and 2:
8. The plaintiff, is, the wife of defendant No.1.
The plaintiff’s suit, for maintenance, cast under the
provisions of Section 18 of the Hindu Adoption, and,
Maintenance Act, 1956, would beget success, only upon,
the hereinafter extracted apt provisions borne in Section
18 thereof, visibly begetting satiation:-
“18 Maintenance of wife. –(1) Subject to the
provisions of this section, a Hindu wife, whether married16/05/2018 23:06:10 :::HCHP
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before or after the commencement of this Act, shall be
.
entitled to be maintained by her husband during her life
time.
(2) A Hindu wife shall be entitled to live separately from
her husband without forfeiting her claim to maintenance–
(a) if he is guilty of desertion, that is to say, of abandoning
her without reasonable cause and without her consent oragainst her wish, or wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a
reasonable apprehension in her mind that it will be
harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his
wife is living or habitually resides with a concubineelsewhere;
(f) if he has ceased to be a Hindu by conversion to another
religion;
(g) if there is any other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residence
and maintenance from her husband if she is unchaste orceases to be a Hindu by conversion to another religion.”
Even though, therein a peremptory obligation, is, cast
upon a husband, to maintain his legally wedded wife,
and, also the statutory liability, of, a husband to
maintain his legally wedded wife, during, the latter’s life
time, obviously also does not enjoin any wrangle
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therewith. However, the staking(s), of, apt entitlement,
of, the aforesaid provisions, would ensue vis-a-vis the
plaintiff, hence only, upon evidence existing on record, in
display, of her husband willfully deserting her, or
abandoning her without any reasonable cause, and,
neglecting her,
r to
without her consent or against her wish or his willfully
besides his being proven to be
perpetrating cruelty, upon his legally wedded wife, of
such severity, whereupon, an apprehension is aroused in
her mind, that, it will be harmful or injurious, for her, to
live with her husband. However, evidence in respect of
the aforesaid trite statutory parameters, rather remained
unadduced. Consequently, with the aforesaid statutory
parameters hence remaining grossly unproven, hence, it
stood aptly concluded, by the learned trial Court, qua the
plaintiff’s suit rather warranting dismissal. Further
strength, to, the aforesaid conclusion, is garnered, by the
factum of the plaintiff, since 1960 till hers instituting the
suit, remaining apart, from, the matrimonial company of
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her husband, (i) thereupon, with the belated institution of
the extant suit by the plaintiff, since hers departing, from,
the matrimonial company of her husband, in the year
1960, (ii)whereas, upon hers thereat, or hers in prompt
sequel thereof, rather instituting the apposite suit, with,
averments
parameters
in
aforestated,
r to
consonance, with,
besides
the
upon
apt
hers
statutory
making
testification(s), in consonance therewith, may, rather
have enabled her, to beget success. Contrarily, with
hers, hence, belatedly instituting the suit, since, hers
departing from the matrimonial company, of her
husband, in the year 1960, (iii) per se, thereupon, it is
manifest, of hers, being estopped, to, even plead of her
husband, defendant No.1, during, the period of her stay
in his matrimonial company, hence maltreating or
illtreating her with cruelty, of such a nature, whereupon
hence, hers staying with defendant No.1, stood rendered
harmful and injurious, (iv) and, of, defendant No.1 being
guilty of deserting her or his abandoning her, without,
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reasonable cause, and, without her consent or against
her wish or his willfully neglecting her. Even the latter
inference, gathers strength, given no evidence, in
satiation thereof being adduced, comprised in the
defendant rather evidently contracting an invalid second
marriage, despite subsistence, of his, valid marriage with
the plaintiff, (v) in sequel whereto, it may be inferable, of
his deserting, the plaintiff or his abandoning her, without
any reasonable cause, and, without her consent or
against her wish or his willfully neglecting her, (vi) rather
with the plaintiff, since, the year 1960 alienating herself,
from, the matrimonial company, of defendant No.1, her
husband, is a palpable display, of hers, rather without
the consent and against, the wish of her husband, rather
separating herself from his matrimonial company, and,
also hers hence volitionally choosing to depart, from, the
matrimonial company of her husband, rendering her
hence disabled to claim maintenance, from, the
defendant/appellant herein.
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9. At the time of institution of the suit, defendant
No.1 was aged 70 years, and, though, as revealed by
jamabandis borne in Ex.P-1, and, in Ex.P-2, he along with
his brothers, is, shown as co-owner in the suit land.
However, though, the learned trial Court, given the age of
r to
defendant No.1, had concluded of his being disabled, to
cultivate the joint land, and, also it revered, his
testification, of his brothers on his behalf cultivating, his
share ,in the undivided property. Contrarily, the learned
first Appellate Court, ignored the effects, of, the factum
of the age, of defendant No.1, and, it concluded that he
may, dehors, his age, limiting his capacity, to personally
cultivate his share in the undivided shareholdings, yet he
given his being enabled, to cultivate it through
deployment, of, labourers, thereupon, it computed, the
estimated income derived by him, from, the undivided
shareholdings, being comprised in a sum, of Rs.500/- to
Rs.600/- per month. The aforesaid estimation, dehors
any tangible evidence existing on record, has hence
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begotten the sequel, of, the learned first appellate Court,
ignoring, the effects, of, the factum of the appellant
herein/defendant No.1, being evidently dependent upon
his brother, (i) thereupon, unless evidence stood adduced
qua the brothers of defendant No.1, after, receiving the
price(s), for the crops reared, on the joint suit land, theirs
preserving some part thereof, vis-a-vis defendant No.1,
(ii) thereupon, alone it could be concluded, of,
quantification of maintenance per mensem made by the
learned first appellate, rather being meritworthy.
However, with the aforesaid evidence being amiss,
thereupon, it was insagacious, for, the learned first
Appellate Court, to ignore all the effects, of, the age of
defendant No.1 also hence his being disabled, to
personally cultivate the suit land, besides of his hence
being dependent upon his brothers .
10. Be that as it may, the learned trial Court, had
on anvil, of, evidence available on record, in display of
the plaintiff, staying with her son, who is evidently
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employed in a bank, hence, rears a handsome salary,
from his employment, besides, also with the dependence,
of, defendant No.1, upon, his brother(s), and, of his
deriving no income, from, the undivided shareholdings,
jointly held by him, with them, rather aptly concluded, of,
maintain his aged mother,
r to
with the son of the plaintiff, being also enjoined, to
hence aptly dismissed the
plaintiff’s suit, whereas, the learned first Appellate Court
has, for fallacious reasons, rather inaptly decreed the
plaintiff’s suit.
11. The above discussion unfolds the fact that the
conclusions as arrived by the learned first Appellate Court
being not based upon a proper and mature appreciation
of evidence on record. While rendering the findings, the
learned first Appellate Court has excluded germane and
apposite material from consideration. Substantial
questions of law No.1 and 2 are answered in favour of the
appellant and against the respondent/plaintiff.
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12. In view of above discussion, the instant appeal
is allowed and the judgment and decree rendered by the
learned Additional District Judge, Solan, in Civil Appeal
No. 63-NL/13 of 2000 is set aside, whereas, the judgment
and decree rendered by the learned trial Court in C.S. No.
8/1 of 97/99 is affirmed and maintained. Decree sheet be
prepared accordingly. All pending applications also stand
disposed of. No order as to costs.
(Sureshwar Thakur)
14 th
May, 2018. Judge.
(jai)
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