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Sukhdev vs Coram on 14 May, 2018

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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…7…

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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…8…

.

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.1

with such cruelty as to cause reasonable
apprehension in the mind and that it will be

harmful 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 her

maintenance 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 married

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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 or

against 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 concubine

elsewhere;

(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 or

ceases 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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