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Jayan vs Jayan on 15 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940

Mat.Appeal.No. 757 of 2018

AGAINST THE ORDER DATED 15.5.2018 IN OP 1994/2015 ON THE FILE OF
THE of FAMILY COURT,THRISSUR

APPELLANT/RESPONDENT :

JAYAN
AGED 35 YEARS, S/O.SURENDRAN,THAIVALAPPIL
HOUSE,CHOOLISSERI P.O., MUNDUR,THRISSUR DISTRICT.

BY ADV. SRI.C.CHANDRASEKHARAN

RESPONDENT/PETITIONER:
ATHIRA
AGED 24 YEARS, D/O.A.T.SURESH,ARAYALAN
HOUSE,KURICHIKKARA P.O., VADAKKECHIRA,MATTAMPURAM,
THRISSUR – 680 028.

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2018
THE COURT ON 15.01.2019, THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal 757/2018 2

C.K.ABDUL REHIM

T.V.ANILKUMAR, JJ.
———————————
Mat.Appeal No.757 of 2018
———————————-
Dated this the 15th day of January 2019

JUDGMENT

T.V.ANILKUMAR, J.

Appellant in this appeal is the respondent in O.P.1994/2015

on the file of the Family Court, Thrissur. The sole respondent in this

appeal, who is the wife of the appellant, filed the O.P. before the

Family Court seeking to recover past and future maintenance, from

the date of her desertion. The lower court decreed the original

petition awarding to her the arrears of past maintenance at the rate of

Rs.3,000/- per month from the date of desertion, till the date of

institution of original O.P. She was also awarded future maintenance

at the rate of Rs.5,000/- for the subsequent period.

2. There was also a connected case, O.P. 124/2014, filed by the

respondent herein seeking to recover her gold ornaments and

patrimony alleged to have been entrusted with parents of the
Mat.Appeal 757/2018 3

appellant. After joint trial of both the O.Ps by the impugned common

judgment dated 15.5.2018, the Family Court decreed the claim of

respondent for maintenance and dismissed her claim for recovery of

gold and patrimony. Against the dismissal of O.P.124/2014, she has

not chosen to file any appeal, but only allowed it to become final.

The appellant, being aggrieved by the decree awarding maintenance,

has filed this appeal.

3. Though notice to respondent was served in this appeal, she

did not appeared and contested the proceeding.

4. Parties are Hindus and were married on 27.5.2013. They have

no issues born out of the wedlock. They lived in the matrimonial

house together only for a few weeks. The respondent left the

matrimonial home on 29.6.2013. These facts are undisputed in the

pleadings as well as in the evidence adduced by parties.

5. Respondent admits of having left the company of the

appellant on 29.6.2013. According to her, it was not deliberate, but

her life with him was miserable. She could not have reasonably led

a normal matrimonial life with the appellant at all. Allegations made

by her are that, he took away 20 sovereigns of her gold ornaments

and misappropriated the patrimony amount of Rs.70,000/-, in
Mat.Appeal 757/2018 4

collusion with his parents. The amounts misappropriated were

utilised for purchasing an Omni Van in his name. On the very first day

of the marriage itself, he treated her with cruelty and had forced sex

with her, after keeping her both limbs tied up. She was manhandled

also. After she consequently left for her home, he married another

woman against law and allowed her to stay in his house. All these

acts of the appellant dissuaded her from joining his company, after

she was searched and produced before the learned Magistrate

Chavakkad on 6.7.2013.

6. These allegations were, however denied by the appellant in

his objection filed in answer to the Original Petition. He said that she

did not have any love or affection for him and did not even permit him

to touch her body. She always loved to make calls with her friends

over phone and resisted his company for no fault of his. Her

departure on 19.6.2013 from his house was voluntary and with a view

to abandon the matrimonial relationship. Since she failed to

discharge the obligations of a life partner, she is not entitled to claim

any maintenance under law, is the contention.

7. According to respondent, appellant is a Tipper Lorry Driver,

which he admits in his pleadings also. She alleges that he is getting a
Mat.Appeal 757/2018 5

monthly income of Rs.44,000/- from different sources. He has given

on rent an Autorikshaw and the Omni Van purchased in his name and

is collecting good monthly returns from these sources. These two

sources were denied by the appellant in his objections and his

admitted source of livelihood is a Tipper Lorry in which he is employed

as a Driver.

8. The lower court examined the respondent as PW1 and

received Exts.A1 to A5 in evidence. Her maternal uncle was

examined as PW2. In order to prove Ext.X1 series gold loan ledger,

with which we are unconcerned with this appeal, PW3, the Secretary

of Co-operative Society was examined. Appellant was examined as

RW1 and he proved Exts.B1 B2. Among these documents, what is

most relevant in this appeal is Ext.A3 alone, which is the certified copy

of statement of respondent given by her before the JFCM,

Chavakkad, where she was produced by police on 6.7.2013. The

finding of the lower court in O.P.124/2014 is that she failed to prove

not only entrustment of gold and cash but misappropriation also. This

alleged conduct cannot however be imputed to the appellant as a

ground of cruelty for claiming maintenance in O.P.1994/2015 since

finding against the respondent in that respect has become final.
Mat.Appeal 757/2018 6

9. The lower court found that the appellant has sufficient means

to maintain the respondent out of the income he gets as the Driver

of Tipper Lorry and the respondent has no source of means. It

accepted the respondent’s testimony, when confronted with Ext.A3

statement that, she never made an admission that she joined any

hospital as a staff. The lower court after discussing the evidence of

PWs1 and 2 and RW1 finally found that the respondent was entitled

to a decree for maintenance from the appellant both past and

future.

10. The three points that arise for consideration in this appeal

are the following:

(1) Whether respondent’s conduct of leaving the matrimonial home

disentitles her to seek separate maintenance from the appellant ?

(2) Whether the appellant has means to maintain the respondent ?

(3) Whether quantum of maintenance fixed as per the impugned

judgment is reasonable?

11. The learned counsel for the appellant submitted that the

judgment of the lower court cannot be upheld in as much as it did not

enter any definite finding as to how the respondent was justified in

claiming separate maintenance without discharging the matrimonial
Mat.Appeal 757/2018 7

duties of a wife under law. He also argued that respondent being a

staff in a hospital as proved by her own admission in Ext.A3

statement, she is not entitled to exorbitant amount of maintenance as

fixed by the trial court much less any amount at all towards

maintenance.

12. Under Section 18 (2) of the Hindu Adoptions and

Maintenance Act 1956 (for short the Act) a Hindu wife is entitled to live

separately from her husband without forfeiting her claim to

maintenance under certain circumstances enumerated in the section.

Two of them which the respondent relies on in her case are

circumstances when the husband has any other wife living with him

and he has treated the claimant wife with cruelty. Under Section 18

(3) of the Act Hindu wife would be dis-entitled to separate residence

and maintenance from her husband if she is unchaste or ceases to

be a wife by conversion to any other religion. The appellant has no

case that she is either unchaste or ceased to be a Hindu by

conversion from any religion. Only allegation against her by appellant

is that she made 360 calls with a person over land phone. This

allegation against her was not proved by any evidence even after it

was denied her as false. She as PW1 was frank enough to admit in
Mat.Appeal 757/2018 8

her cross examination that a few calls she made was with one

Sumith. But this evidence is not enough to castigate her as unchaste

especially in the absence of precise pleading alleging her as

unchaste.

13. The sole question that survives in this appeal is whether her

claim for separate maintenance is justified by circumstances

enumerated under Section 18 (2) of the Act. Among the two clauses

(b) and (d) in Section 18 (2) of the Act , ground in clause (b) will

certainly come to her aid. Her allegation matching clause (b) that

during the subsistence of the marriage, the appellant married another

woman and living with two issues born out of that relationship was not

proved by any convincing evidence. The details of the relationship,

her name and address etc., were not furnished either in her pleadings

or evidence. The lower court also disbelieved this allegation against

the appellant.

14. Clause (b) to Section 18(2) provides that a wife would be

entitled to separate maintenance if she was treated with such cruelty

as to render her life with the life partner harmful and injurious. What

conduct of the spouse amounts to cruelty within clause (b) would

depend on individual facts of each case. We find from the impugned
Mat.Appeal 757/2018 9

judgment of the lower court that it has not tried to understand the law

in this respect though there was general discussion of evidence of

the parties and witness as regards the conduct of the appellant.

15. The contention of the learned counsel for the appellant is

that Ext.A3 statement of respondent is the best proof of her

voluntarily leaving the company of the appellant with a view to

abandon her matrimonial relationship with him forever. If this

contention is proved, no doubt the respondent would be disentitled to

separate maintenance unless she proves she has justifiable cause as

provided by clause (b) (g) of Section 18(2) of the Act.

16. She does not dispute that she left the company of the

appellant on 29.6.2013 own her accord. But she has explanation for

her conduct and continued separate living in her parental home.

17. She testified that on the first day of the marriage itself, she

was subjected to sexual intercourse by force. Her arms were tied up

by the appellant and he behaved cruelly. RW1 denied the allegations

against him. This is an allegation which no reasonable woman can

prove by adducing any independent evidence. The credibility of her

evidence is the intrinsic worth of what she has sworn after taking oath.

Only circumstances can prove or disprove the allegation. Her
Mat.Appeal 757/2018 10

allegation in our opinion may be true in all probabilities of the case.

Even appellant admits that respondent used to avoid sleeping during

night fearing him to touch her body against will. He said that he had

an occasion to take her for treatment for her strange behaviour

towards a husband. She too admits that she was sleepless in those

days but was never treated for any kind of disease. She had to follow

the appellant to a temple and she met a Poojari and nothing more

happened. When testimonies of PW1 and RW1 are read together,

respondent’s allegation of forced sex appears to be believable.

18. What the respondent experienced at the hands of the

appellant must be true and we consider that it is no less than an act

of cruelty which a reasonable prudent woman can never tolerate.

She cannot be disbelieved if she developed a reasonable

apprehension of harm to her life at the hands of the appellant. In

Ext.A3 statement given before the learned Magistrate, she took a

definite stand that she wanted to join her parents in lieu of the

appellant. This must only be because of her reasonable

apprehension of danger to life. We are satisfied that but for the

misbehaviour and misconduct of the appellant, the respondent would

never have been persuaded to leave his company on 29.6.2013.
Mat.Appeal 757/2018 11

19. The learned counsel for the appellant assailed the judgment

of the lower court as unsustainable on the ground that the respondent

being a staff in a hospital as proved by her own admission in Ext.A3

statement given before JFCM, Chavakkad, she should not have been

favoured with the decree of maintenance as if she was not possessed

of any means. It is true that Ext.A3 statement recorded by the learned

Magistrate Chavakkad on 6.7.2013 contains an admission that she

joined as a staff in a hospital. She denied the alleged admission

while being confronted with Ext.A3. We fail to understand as to how

she could have denied the admission without any explanation. Law

certainly permits a person to resile from an admission provided he has

circumstances justifying such withdrawal. A statement made under a

mistake or other justifying circumstances does not amount to an

admission under law when it is properly explained. In the absence of

any proper explanation being made by the respondent, the admission

in Ext.A3 statement that she went to the hospital as a staff proves that

she is an employee. Until the contrary is proved, she must be

presumed to have source of some income. This however is not

enough to relieve the appellant from his legal liability to maintain her.

20. Under Hindu Law, a wife possessed of means is not
Mat.Appeal 757/2018 12

disentilted to claim maintenance. A husband with or without means is

liable to maintain his wife so long as marital tie continues between

them. His liability to maintain is not relaxed or taken away by Section

18 of the Act on the sole ground of dearth of means or assets at his

disposal. Therefore, even assuming that the admission of the

respondent is true, she is not disqualified from demanding separate

maintenance from appellant and at the most, it could only mitigate the

quantum of maintenance which she can claim from the husband.

21. The appellant was proved to be a Tipper Lorry Driver,

even by his own admission. There is no evidence for the allegation

that he owned any Omni Van or Autorikshaw and rented them out for

earning income. The lower court also disbelieved the case of the

respondent in this respect. There is also no evidence to prove the

respondent’s allegation that appellant is earning monthly income of

Rs.44,000/-. The evidence on record does not indicate in precise

terms as to the quantum of income which the appellant earns every

month. During his cross examination, RW1 made an admission that

he had taken on rent an Autorikshaw. Therefore there is ground to

believe that he has additional source of income also. In our

opinion, agreeing with the lower court’s view, the appellant has
Mat.Appeal 757/2018 13

sufficient means to maintain the respondent. The view taken by the

lower court is also that the appellant has sufficient means to maintain

the respondent. Thus the contention of the learned counsel for the

appellant that he is not liable to maintain the respondent under law is

not worthy of any acceptance for the reasons indicated above by us.

22. However, we feel that the monthly maintenance fixed by

the lower court is on the higher side. In the absence of evidence

regarding precise income of the appellant and after taking into

account the entire facts on record, it is only just and proper, to fix the

monthly maintenance of the respondent at the rate of Rs. 2,500/-.

The lower court awarded Rs.3,000/- and Rs.5,000/- towards past and

future maintenance, respectively. The rate fixed, according to us,

being unreasonable requires to be modified to Rs.2,500/- per month

since the month of desertion of the appellant and continuously

thereafter. Thus the impugned judgment of the lower court deserves

to be confirmed subject to the modification to the rate of monthly

maintenance fixed by the lower court.

In the result, the appeal is allowed only to the partial extent

indicated above and in other respects the impugned judgment will

stand confirmed. Respondent will recover from the appellant
Mat.Appeal 757/2018 14

maintenance both past and future at the rate of Rs.2,500/- from the

month of July 2013 and continuously thereafter so long as the decree

remains unaltered having regard to the material change in the

circumstances justifying such alteration as provided by Section 25 of

the Act.

Sd/-

C.K.ABDUL REHIM,
JUDGE

Sd/-

T.V.ANILKUMAR,
JUDGE
al/-

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