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.
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Mat.Appeal No.757 of 2018
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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/-