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Chelliah Pillai vs Sankara Vadivammal on 3 July, 2019

1

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
***

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

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