JUDGMENT
D.V. Shylendra Kumar, JJ.
1. This is an appeal by the wife who was the plaintiff in O.S. No. 6 of 1995 on the file of the Judge, Family Court, Bijapur and whose suit for maintenance against the defendant husband came to be dismissed.
2. The plaintiff and the defendant were married in the year 1966. They lived together and a daughter was born to the couple. It appears that the defendant contracted a second marriage in the year 1977. Thereafter, the plaintiff has averred that her husband and second wife started ill-treating her, harassing her and threw her out of the house. The plaintiff was forced to seek shelter in her relative’s place and as she is unable to support herself in the evening of her life, had approached the Court for grant of maintenance. It was also averred in the plaint that the defendant husband, is a man of means, was owning about seven acres of fertile agricultural land in Sy. No, 730 of Ingleshwar Village, Basavana Bagewadi Taluk and his income was in the range of Rs.
70,000/- to Rs. 80,000/- per annum and as such was claiming a nominal maintenance of Rs. 1,000/- per month.
3. The defendant contested the suit. The relationship was not disputed, but it was averred that the marriage between the parties had been dissolved by mutual agreement in the year 1972 as per an agreement dated 21-8-1972 (marked as Ex. D. 2). As the plaintiff was a divorced lady it was contended that she was not entitled for any maintenance. It was also pleaded that at the time when the plaintiff wife was living with the husband, the husband had paid her a sum of Rs. 15,0007-towards maintenance. The suit claim was resisted and defendant pleaded for dismissal of the suit.
4. The Family Court, on such pleadings, framed as many as ten issues, the material amongst which are.–
“1. Whether the plaintiff proves that the defendant has deserted her?
2. Whether the plaintiff is entitled for maintenance?
3. Whether the defendant proves that he and the plaintiff had agreed to live separately? and
4. Whether the defendant further proves that he has paid a sum of Rs. 15,000/- for the entire maintenance during her lifetime?”
5. On behalf of the plaintiff, apart from the plaintiff, another witness was examined. Documentary evidence, revenue extracts of agricultural land in Sy. No. 730 of Ingleshwar Village was produced as Ex. P. 1 and voters’ list of the place as Ex. P. 2. On behalf of the defendant, apart from the defendant himself, two other witnesses were examined. A legal notice which had been issued on behalf of the plaintiff wife to the defendant husband was produced by the defendant as Ex. D. 1 and the reply to the same was produced as Ex. D. 3 while the agreement for separate living dated 21-8-1972 is marked as Ex. D. 2.
6. The Family Court, on an examination of the material on record and on consideration of the evidence, answered the first issue as against the plaintiff, also answered the issue relating to her entitlement for maintenance in the negative. So also issue 5 about creating a charge on the agricultural property of the defendant and held that the defendant has proved about the agreement under Ex. D. 2, but held that the defendant had not proved the payment of Rs. 15,000/- by him to the plaintiff towards maintenance and being of the view that as the plaintiff was divorced, the defendant was not liable to maintain her by paying any maintenance and accordingly dismissed the suit. It is against this judgment and decree the plaintiff is in appeal before us.
7. We have been taken through the judgment of the Court below, perused the records and have heard the learned Counsel. The second marriage of the defendant husband with one Smt. Savitri in the year 1977 is not disputed and it is also admitted that the husband has three children from out of the second marriage. On the date of the filing of the suit, the defendant husband was admittedly living with his second wife and children and the plaintiff first wife was living separately. In this situation, the question of the first wife proving that her husband deserted her, does not arise.
8. The Trial Court, on an erroneous view that when once the defendant husband had proved that he had divorced the first wife as per the agreement Ex. D. 2, was not liable to maintain her, non-suited the plaintiff. This is not the correct legal position. The learned Trial Judge has reasoned that the suit having been filed under the provisions of Section 18 of the Hindu Adoption and Maintenance Act and the provisions of Section 18(2) of the said Act not enabling a divorced wife to claim maintenance as against the husband and the divorced wife being not a “dependent” within the meaning of Section 22 of the Act, the divorced wife is not entitled to claim maintenance. The claim having not been brought under the provisions of the Hindu Marriage Act, there was no scope for awarding maintenance is the reasoning of the learned Trial Judge. In this regard, it is significant to notice that it is the case of the plaintiff wife that she was and is the first wife of the defendant husband and not a divorced wife. It was the defence set up by the husband that as per the agreement for separate living under Ex. D. 2 they were living separately and in view of the fact that he had paid a sum of Rs. 15,000/-by way of settlement towards her maintenance, he is not liable to pay any further amount.
9. The Trial Court has recorded a categorical finding that the defendant has not been able to prove the payment of a sum of Rs. 15,000/- to the plaintiff wife whether by way of maintenance or otherwise. Ex. D. 2, though styled as an “agreement to live separately” assuming, to be proved for the purpose of argument, does not bring about the separation of a married couple, in law and does not have the effect of putting an end to their relationship. A marriage, in law can be dissolved only by a method recognised in law and not otherwise. It is neither asserted that there was a divorce putting an end to the relationship between the parties in accordance with any customary rite or practice nor has it been proved. Assuming that there is any such customary practice that has to yield to the statutory provision under the codified law, particularly the Hindu Marriage Act which govern the relationship of parties to the marriage. The so-called arrangement for separate living which is sought to be passed off as a “divorce deed” is dated 21-8-1972 much subsequent to the Hindu Marriage Act coming into effect and as such the question of recognising it as a “divorce deed” does not arise. If that is the legal position, the Trial Court could not have accepted Ex. D. 2 as a valid document for bringing about cessation of relationship between the parties as husband and wife. In this view of the matter, the Trial Court is definitely wrong in concluding that the suit brought under the provisions of Hindu Adoption and Maintenance Act has to fail. The relationship having continued as husband and wife between the parties, the claim as brought was definitely tenable and bona fide. We are not inclined to examine as to whether the husband was still liable to pay maintenance if there was an end to the relationship, and as to whether in such circumstances the maintenance amount could have been allowed under the provisions of the Hindu Marriage Act, as that situation does not arise here.
10. Even the pleading of the defendant husband that he had paid a sum of Rs. 15,000/- having not been proved, it cannot be said that the husband had made any arrangement for the maintenance of his wife. The plaintiff wife was definitely entitled to claim maintenance from the husband.
11. The plaintiff wife had claimed past maintenance as well as future maintenance. In this regard, we would like to take note of the submission of the learned Counsel for the respondent husband that the suit has been filed only in the year 1995, though the parties had been married as early as in the year 1966 and this is a circumstance to probabilise that they had been separated by an agreed arrangement and as such there is no liability on the part of the husband to maintain the wife. We take note of this submission only to the extent of denying maintenance in respect of the earlier years but the wife is definitely entitled for maintenance from the date of the suit claim.
12. The defendant husband is owning agricultural property and his yearly income is Rs. 70,000/- to Rs. 80,000/-. The agricultural land measures an extent of 7 acres 12 guntas assessed at Rs. 12.63 p. and is treated as fertile land. In the circumstances, we hold that a monthly maintenance of Rs. 750/- will be very reasonable and minimal. The suit of the plaintiff is decreed to the extent of awarding maintenance at a sum of Rs. 750/- per month from the date of the suit claim. The future maintenance also to be at the same amount.
13. We also hold that a charge is created on agricultural property bearing Sy. No. 730 of Ingleshwar Village, Basavana Bagewadi Taluk in respect of payment of this maintenance from the date of the suit and the current and future maintenance.
14. The appeal is allowed. Judgment and decree of Family Court is modified accordingly. The suit is decreed in terms indicated above. Parties to bear their own costs in the circumstances.