Mamatha v. C Appoji Rao

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940** **Mat.Appeal.No. 467 of 2010** **AGAINST THE ORDER/JUDGMENT IN OP 229/2009 of FAMILY COURT, KASARAGOD DATED 14-05-2010** **APPELLANT(S)/APPELLANT** **MAMATHA, AGED 37 YEARS, W/O.APPOJI RAO AND D/O.THUKKOJI RAO,, RESIDING AT KAYYENI HOUSE, PO URDOOR,, ADOOR VILLAGE, KASARGODE TALUK AND DISTRICT.** **BY ADV.SRI.JAWAHAR JOSE** ## **RESPONDENT(S):** **C.APPOJI RAO, AGED 50 YEARS, S/O.DURGOJI RAO, RESIDING AT CHARALADKA, HOUSE, URDOOR POST AND VILLAGE,, KASARGODE TALUK AND DISTRICT.** **R,R1 BY ADV. SRI.M.S.IMTHIYAZ AHAMMED R,R1 BY ADV. SRI.SHIRAZ ABDULLA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** K.HARILAL & A.M.BABU, JJ. - - - - - - - - - - - - - Mat.Appeal 467 of 2010 - - - - - - - - - - - - - - Dated : 19[th] June, 2018 - - - - - - - - - - - - - - ## JUDGMENT A.M.Babu, J - 1.Appellant is the wife of the respondent. The former moved against the latter before the family court for past maintenance. The appellant was nonsuited by the family court. Therefore is she in appeal. - 2.The case of the appellant may be briefly stated as follows : Her marriage with the respondent was solemnized on 11.4.1988. No children was born in the wedlock. The appellant was harassed and illtreated in her matrimonial home by the respondent and his mother. The appellant attempted to commit suicide on 2.4.2001 unable to bear the cruel treatments she suffered in her matrimonial home. The spouses are now living separately. The respondent is not maintaining the appellant for the last several years. However, she limits her **Mat.Appeal 467/2010** 2 claim for maintenance for 17 months from 10.9.2006 to 10.2.2008. She is not claiming maintenance for the subsequent period since she got a small employment in a hospital. The respondent is an agriculturist owning an arecanut garden and a coconut garden. The appellant is entitled to past maintenance for 17 months at the rate of Rs 5,000/- per month. 3.The respondent contested the case. He raised the following contentions : He was never cruel to his wife. But she had aversion towards him. She alleged that he was impotent. He had an operation for hernia and had to take rest for some time. What the appellant did do was to have an illicit intimacy with a domestic servant. The appellant and the servant were caught red-handed on 26.3.2001. Still was she not repentant. She shouted at him and abused him. She stated that she had to satisfy her sexual needs which could not be satisfied by him as he was impotent. News spread in the locality and that was the reason 3 ## **Mat.Appeal 467/2010** for the attempt of the appellant to commit suicide on 2.4.2001. The appellant is now comfortably living at Mangalore. She has sufficient income for her livelihood. The respondent is living on his meagre income he gets from agricultural works. - 4.Both sides adduced evidence before the family court. PW1 and RW1 were examined. They are the appellant and the respondent respectively. - 5.Heard Sri.Jawahar Jose, the learned counsel for the appellant and Sri.M.S.Imthiyaz Ahammed, the learned counsel for the respondent. - 6.The family court stated several reasons to nonsuit the appellant. The reasons given by the trial court were not legal or based on evidence. The family court found fault with the appellant for everything. The trial court said that the appellant limited her claim to 17 months although she was entitled to claim maintenance for 36 **Mat.Appeal 467/2010** 4 months. That cannot be taken as a reason to nonsuit any litigant. It is more so in the present case since the appellant stated a specific reason why she confined her claim to 17 months. She stated that she was confining her claim to 17 months since she got the employment of a sweeper in a hospital at Mangalore. The family court found fault with the appellant for not moving the court for maintenance for 10 years after the alleged desertion. That was also not the concern of the family court. No court can find fault with a litigant for not approaching it for maintenance at an earlier point of time. It is not at all necessary for any wife who claims maintenance to satisfy the court why she did not come to the court earlier. The family court was only called upon to decide whether the appellant was entitled to maintenance during the period for which such maintenance was claimed. A reading of paragraph 5 of the impugned judgment suggests that the family court was unhappy about the order passed by the magistrate under the provisions of the **Mat.Appeal 467/2010** 5 Protection of Women from Domestic Violence Act directing payment of maintenance. The judge of the family court even stated that the appellant did not make it clear as to on what ground the provisions of the said Act were invoked. That was also not the concern of the family court. The attitude of the family court referred to above by us is not appreciable. What we have stated above find a place in the impugned judgment at the beginning of the discussion. Stating such matters at the beginning of the discussion only suggests the prejudiced mind of a judge. The family court should have avoided such discussions to deny the maintenance claimed by the appellant. 7.On merits too, the family court said something. The said court apparently believed the version of the respondent that the appellant developed an illicit intimacy with a servant of her husband. The family court did not discuss the evidence on the point. The discussion was based on the pleadings of the parties, and not evidence. The **Mat.Appeal 467/2010** 6 way in which the family court disposed of the case cannot be appreciated at all. The said court did not consider the evidence properly, but disposed of the case based on the thoughts the judge had in his mind. In view of the way in which the suit has been disposed of by the family court, we have to consider the appeal and decide the case as a trial court does. 8.The parties are hindus. They are therefore governed by the Hindu Adoption and Maintenance Act (for short 'the Act). Under Sec.18 of the Act a hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance on any of the grounds enumerated therein. Cruelty of the husband is one of the grounds for the wife to live away from her husband without forfeiting the claim to maintenance. PW1 spoke to her life in her matrimonial home. She spoke that she was illtreated and harassed by the respondent and his mother. Those allegations have been denied by the **Mat.Appeal 467/2010** 7 respondent as RW1. The evidence on the life of PW1 in the house of RW1 is oath against oath. But the contention of the respondent that his wife is not chaste amounts to cruelty if the allegation is false or could not be proved. The allegation is that the wife had an extra marital relationship with a servant of the husband. It is admitted by both PW1 and RW1 that the respondent had a servant by name Narnu Naik. The respondent contended that the appellant was caught redhanded on 26.3.2001. The respondent should prove the said allegation. If he fails, he should be termed a cruel husband. 9.RW1 spoke that the appellant developed an intimacy with Narnu Naik. It is also RW1's evidence that he advised his wife to refrain from such immoral intimacy. According to RW1, his wife did not heed to his advice. What RW1 spoke in court was only that he saw his wife and the servant together in the act. RW1 did not disclose what precisely the act was. The circumstances do **Mat.Appeal 467/2010** 8 suggest that the evidence of RW1 on the point is not believable. According to RW1, the reaction of his wife when she was caught was that she loved Narnu Naik only because the respondent could not give her sexual pleasure. Had any such extra marital episode taken place and if the reaction of the wife was as stated by RW1, in the normal course, there was no possibility of permitting the wife to continue her residence in the house of the husband. But the evidence suggests that the wife continued to reside in the house of her husband even after 26.3.2001. RW1's evidence suggests that even after the departure of his wife from his house, he made attempts to bring her back. He said he requested his wife to join him. The said evidence of RW1 suggests the falsity of his allegation that he saw any extra marital episode involving his wife and the servant. We are therefore unable to believe the pleadings and evidence of the respondent on the point. PW1 categorically denied any such intimacy or episode. She was cross-examined. Nothing came **Mat.Appeal 467/2010** 9 out in cross-examination to disbelieve the denial of PW1. There were only a few suggestions and PW1 denied all such suggestions. We are clear in our minds that the husband falsely contended that his wife was not chaste. - 10.False, scandalous, malicious, baseless and unproved allegations made by one spouse, whether by letter or written statement or by any other mode, do amount to cruelty. It has been so held by a learned single judge of this court in A vs B (2000 (2) KLJ 734). We are in complete agreement with the learned single judge. In this connection we also refer to the decision of the apex court in Vijayakumar Ramachandra Bhate vs Neela Vijayakumar Bhate (AIR 2003 SC 2462). - 11.The unproved allegations of unchastity made by the husband against the wife would prove the husband to be cruel to his wife. Therefore the appellant has established a ground to live away from her husband without forfeiting her claim to **Mat.Appeal 467/2010** 10 maintenance. 12.The appellant is claiming maintenance only for 17 months as we have already stated. She has contended and has given evidence that during the said period of 17 months she was unemployed. The family court stated that the appellant did not explain how did she live during those days. The family court seems to be under an impression that the appellant had some income during the said period. But, unlike Sec.125 of Cr.P.C, for a wife to make a claim under Sec.18 of the Act she need not establish that she was unable to maintain herself. That means even if she has some income, she is entitled to seek maintenance from her husband. The income of the wife is relevant only for fixing the quantum of maintenance as we understand from Sec.23 of the Act. The respondent should pay maintenance to the appellant for the period of 17 months claimed in the petition. 13.What remains is only fixation of quantum. The **Mat.Appeal 467/2010** 11 claim of the appellant is Rs 5,000/- per month. She states that she is not claiming maintenance after the expiry of the period of 17 months since she got an employment. She states as PW1 that she has a monthly wage of Rs 3,000/-. That means she can live with that wage. The income of the respondent is also relevant in fixing the quantum. The appellant has no case that the respondent is employed or is doing any business. The appellant has pleaded and deposed that the respondent is an agriculturist. The total extent of property he has is 40 cents of arecanut garden and 20 cents of coconut garden. He will have to pay maintenance from the income he was getting from 60 cents of property. Considering the needs of the appellant and the means of the respondent, we fix the quantum of maintenance at the rate of Rs 1,200/- per month. The learned counsel for the respondent requests to give sometime to make the payment. ## 14.The appeal is allowed. The judgement impugned in **Mat.Appeal 467/2010** 12 the appeal is set aside. The original petition filed by the appellant stands allowed to the extent of directing the respondent to pay maintenance to the appellant at the rate of Rs 1,200/- (one thousand two hundred only) per month for 17 months; totalling Rs 20,400/- (twenty thousand four hundred only). The amount shall carry interest at the rate of 9% per annum from today till realisation. The respondent is permitted to pay the amount of Rs 20,400/- with interest in four equal monthly instalments. Considering the man and wife relationship between the parties, we make no order as to costs. K.HARILAL Sd/A.M.BABU Judge Mrcs/19.6. /True copy/ P.S.To Judge