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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 03.07.2019
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal(MD)No.785 of 2016
and
C.M.P.(MD)No.12464 of 2016
Chelliah Pillai : Appellant/Appellant/Defendant
-Vs-
Sankara Vadivammal : Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of
the Civil Procedure, praying to set aside the judgment and
decree passed in A.S.No.46 of 2015 on the file of the Sub Court,
Ambasamudram, dated 29.09.2016 confirming the judgment and
decree passed in O.S.No.153 of 2010 on the file of the Principal
District Munsif Court, Ambasamudram, dated 22.12.2014 by
allowing the above Second Appeal.
For Appellant : Mr.T.Selvan
For Respondent : Mr.H.Arumugam
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JUDGMENT
This Second Appeal is preferred by the husband who is the
defendant in the suit in O.S.No.153 of 2010 on the file of the
Principal District Munsif Court, Ambasamudram, filed by the
respondent/wife for maintenance.
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2.The brief facts that are necessary for the disposal of this
Second Appeal are as follows:
2.1.The marriage between the appellant and the
respondent was solemnised in 1974. It is admitted that the
appellant and the respondent have separated. Though a petition
was filed by the husband for restitution of conjugal rights, the
same was allowed to be dismissed for default. It is admitted
before this Court that the husband is now living with another
lady and therefore, there is no possibility for reunion. Stating
that the husband had driven her from her matrimonial home, the
wife filed the suit for maintenance claiming a sum of Rs.90,000/-
towards past maintenance with interest at 12% and for creating
a charge over the property of the appellant. The suit is also for
permanent injunction restraining the appellant from alienating
or encumbering the charged properties till the time of the
plaintiff.
2.2.The suit was contested by the appellant mainly on the
ground that the wife has deserted him and she is not prepared to
live with the appellant for no fault of him. Apart from stating
that the wife, who deserted the appellant, is not entitled to claim
maintenance, it is pleaded that the appellant is not a man of
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means and the averments of the plaintiff about the financial
status and acquisition or existence of asset have been
specifically denied. It is also stated that the respondent’s son is
employed in a popular textile retail store and therefore, the
respondent is not living in penury so as to get maintenance from
the appellant.
2.3.After framing necessary issues, the trial Court
answered the factual issues raised by the appellant against him.
However, the suit was partly decreed. The trial Court directed
the appellant to pay a sum of Rs.54,000/- (Rupees Fifty Four
thousand only) towards past maintenance calculating at
Rs.1,500/- per month and directed charge being created over the
property shown in the plaint. Aggrieved by the same, the
appellant preferred an appeal in A.S.No.46 of 2015 and the
appellate Court also confirmed the findings of the trial Court and
dismissed the appeal with costs. Aggrieved by the concurrent
judgment and decrees of the Courts below, the present Second
Appeal is filed.
3.The learned Counsel appearing for the appellant
submitted that the Courts below have decreed the suit despite
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the fact that the respondent has not proved her case by oral and
documentary evidence. It is further stated by the learned
Counsel appearing for the appellant that the wife is not living
with the husband and therefore, she is not entitled to get
maintenance from the husband. The Courts below have
concurrently held that the respondent has not deserted the
appellant/husband and that the appellant has contracted second
marriage with another lady. In these circumstances, this Court
is unable to accept the contention that the wife had deserted the
appellant voluntarily and she voluntarily left the husband. With
regard to the existence of properties, there is no controversy.
It is also stated by the wife that the appellant/husband is
employed. The Court on proper appreciation of facts came to
the conclusion that the appellant is liable to pay a sum of
Rs.54,000/- (Rupees fifty four thousand only) as past
maintenance by calculating the maintenance at Rs.1,500/- per
month. The maintenance amount claimed by the respondent is
refused on the specific allegation that the appellant/husband had
deserted the wife and refused to maintain the wife for several
years. Having regard to the fact that only a meagre amount of
Rs.1,500/- has been taken as monthly maintenance, this Court is
unable to accept the contention of the learned Counsel
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appearing for the appellant that the maintenance amount is on
the higher side considering the facts relating to the financial
status of the appellant.
4.As a result, this Court find no merits in the appeal as no
other substantial questions of law is argued. Though the learned
Counsel for the appellant relied upon Section 18 of the Hindu
Adoption and SectionMaintenance Act, 1956, no legal argument was
developed by the learned Counsel for the appellant relying upon
the said provision.
5.Since the Courts below have considered all the aspects
and the findings of the Courts below are supported by materials
and reasons, this Court is unable to interfere with the findings
by exercising its jurisdiction under Section 100 of C.P.C.
Accordingly, this Second Appeal is dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
Index : Yes/No 03.07.2019
Internet : Yes/No
SRM
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S.S.SUNDAR, J.
SRM
To
1.The Subordinate Court,
Ambasamudram.
2.The District Munsif Court,
Ambasamudram.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Second Appeal(MD)No.785 of 2016
and
C.M.P.(MD)No.12464 of 2016
03.07.2019
http://www.judis.nic.in
