IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.4.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.585 of 2009 and M.P.Nos.1 & 2 of 2009 Manivannan ... Appellant vs. Thenmozhi .. Respondent This second appeal is filed against the judgement and decree dated 22.12.2008 passed by the Principal District Judge, Villupuram, in A.S.No.58 of 2006 confirming the judgement and decree dated 10.10.2006 passed by the Subordinate Judge, Kallakurichi, in O.S.No.122 of 2001. For Appellant : Mr.N.Suresh For Respondent : Mr.R.Karunakaran JUDGMENT
This second appeal is filed by the defendant, inveighing the judgement and decree dated 22.12.2008 passed by the Principal District Judge, Villupuram, in A.S.No.58 of 2006, confirming the judgement and decree dated 10.10.2006 passed by the Subordinate Judge, Kallakurichi, in O.S.No.122 of 2001.
2. A recapitulation and ‘resume’ of facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(i) The respondent herein, as plaintiff, filed the suit seeking maintenance.
(ii) The defendant/husband resisted the suit by filing written statement.
(iii) Whereupon the trial Court framed the relevant issues. The plaintiff examined herself as P.W.1 along with P.W.2 and Exs.A1 and A2 were marked. The defendant examined himself as D.W.1 and marked Exs.B1 to B3.
(iv) Ultimately, the trial Court decreed the suit, awarding maintenance of Rs.2500/- per month from the date of suit.
(v) Challenging and impugning the judgement and decree of the trial Court, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgement and decree of the trial Court.
3. Being aggrieved by the judgements and decrees of the Courts below, this second appeal is focussed by the defendant on various grounds and also suggesting the following substantial questions of law:
“A) Whether the Courts below are right in granting decree of maintenance in favour of the respondent, when the respondent is guilty of desertion and cruelty?
B) Whether the Courts below are right in granting decree of maintenance without taking into consideration the divorce decree granted by the matrimonial court in HMOP 64 of 201 and confirmed the same in C.M.A.43 of 2004 on the ground of desertion and cruelty by the respondent herein?
C) Whether the Courts below are right in granting decree of maintenance when there is specific bar provided in Section 18(2) of the Hindu Adoption and Maintenance Act? (extracted as such) 4. My learned predecessor framed the following substantial question of law for consideration. "Whether the courts below are right in granting decree of maintenance in favour of the respondent, when the respondent is guilty of desertion and cruelty as established before the matrimonial court." 5. Heard both sides. 6. The gist and kernal, the warp and woof of the argument as put forth and set forth on the side of the learned counsel for the appellant/husband would run thus:
(i) The husband, who is the appellant herein, filed the divorce petition, which was granted by the Sub Court and as against which, the appeal was filed before the District Court for nothing but to be dismissed. As against the said order, C.M.S.A. is pending before this Court. As such, the matrimonial Courts categorically held that the plaintiff/wife was guilty of desertion and cruelty, and in such a case, the Courts below, in the civil suit concerned were not justified in simply ignoring those facts and awarding maintenance.
(ii) A wife should be free from blemish before claiming maintenance, but in this case, the plaintiff/wife was held to be guilty of cruelty as against her husband, in addition to she having deserted her husband.
Accordingly, the learned counsel for the appellant/husband would pray for setting aside the judgements and decrees of the Courts below and for dismissing the original suit.
7. Per contra, in a bid to take the edge off and to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant, the learned counsel for the respondent/plaintiff/wife would advance his arguments, the warp and woof of them would run thus:
(i) The awarding of maintenance in a civil suit in favour of the wife and as against the husband is having nothing to do with the findings rendered by the matrimonial Court in the matrimonial proceedings as against the wife that she was guilty of cruelty as well as desertion.
(ii) Even a divorced wife, i.e. Divorcee, who was found to be guilty of desertion and cruelty towards her husband is entitled to maintenance and to that effect law is well settled.
Accordingly, the learned counsel would submit that no interference with the judgements and decrees of the Courts below is warranted.
8. The learned counsel for the appellant/husband would invite the attention of this Court to Section 18 of the Hindu Adoptions and Maintenance Act and develop his argument that in stricto senso, Sub Section (2) of Section 18 of the said Act should be interpreted, and accordingly if viewed it is quite clear that the husband, who is not guilty of any of the conducts, as found exemplified in that sub Section, cannot be mulcted with the liability to pay maintenance towards the wife.
9. No doubt, at first flesh, the argument as put forth on the appellant/husband’s side may appear to be attractive, but I recollect and call up the following well settled proposition of law that no part of the Legislation should be rendered nugatory or otiose; forgetting for a moment sub-Section (3) of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, the Court cannot consider the sub-section 2 of Section 18 of the said Act.
10. The learned counsel for the appellant/defendant would try to press into service only sub-Section (2) of Section 18 of the Hindu Adoptions and Maintenance Act.
11. A cumulative reading of Sub-Sections (2) and (3) of Section 18 of the Act would exemplify and demonstrate, express and expatiate, convey and portray that a wife, who is not guilty of adultery or conversion, cannot be deprived of her right to maintenance. Even though the lower matrimonial Courts rendered findings against her that she was cruel towards her husband and that it was she who deserted her husband, yet finality has not been achieved in the matrimonial proceedings.
12. The object of Sub-Section (3) of Section 18 of the Act is to the effect that a wife who is guilty of desertion or cruelty should not be made to suffer for want of maintenance, if she is not having enough wherewithal to meet her creature comforts. If a lady is not having income of her own and could not keep the wolf from the door; or keep the pot boiling, certainly she should be helped by the husband concerned. Here in fact, the matrimonial proceedings have not been attained finality, as admittedly and indubitably, the C.M.S.A is pending before this Court. Here it is not the case of the husband that the wife is guilty of adultery or conversion to some other religion from Hindu religion. Here admittedly both are Hindus.
13. Be that as it may. Despite the findings rendered by both the lower matrimonial Courts, so to say, the Sub Court and the District Court, the plaintiff, who is the wife, is entitled to maintenance, in view of the law laid down by the Honourable Apex Court in the decision reported in (1993) 3 SUPREME COURT CASES 406 CHAND DHAWAN (SMT) V. JAWAHARLAL DHAWAN, certain excerpts from it would run thus:
“25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.
27. This Court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V.R. Krishna Iyer, J. in Carew and Co. Ltd. v. Union of India17. Towards interpreting statutes, the court must endeavour to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi18. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora should not stand in her way and let her cash on her claim overruling all objections. It was asserted that the Amritsar court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn.
28. On the afore-analysis and distinction drawn between the fora and perceptives, it is difficult to come to the view that a claim which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived of thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the jurisdiction. The matrimonial court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the marital status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but that neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operatives, and when not, leaves the patient to the physician.
29. On the afore-analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under Section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which have been left out, which are not in line with our view are overruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs.”
(emphasis supplied)
A bare perusal of the above excerpts, including the whole judgement would reveal that the relief sought by a woman under Section 25 of the Hindu Marriage Act is different from the one under Section 18 of the Hindu Adoptions and Maintenance Act.
14. It is quite obvious and axiomatic from the admitted circumstances as set out supra that still finality has not been achieved in the divorce proceeding, as the matter is pending before this Court in CMSA; however, that in no way precludes the respondent/plaintiff in claiming maintenance from the appellant herein. Incidentally, I would like to point out that even under Section 25 of the Hindu Marriage Act, the legal position is well settled that simply because a decree of divorce might be granted as against the wife by finding fault with her conduct, she cannot be deprived of her right to maintenance unless there are sound reasons to reject her claim for it. Granting of subsistence allowance even to a divorcee in the form of maintenance is the rule.
15. Here, both the Courts below awarded only a meagre, subsistence allowance of Rs.2,500/- per month payable by the husband to the wife. The finding of facts by both the Courts below are to the effect that the husband is having financial wherewithal to pay such maintenance, to the respondent herein, who is having no sufficient means to maintain herself. The Courts below, after considering the salary of the appellant herein as Village Administrative Officer and also his income from his extensive properties as found set out in the schedule of the plaint, which got reflected in the decree, granted maintenance.
16. It is trite proposition of law that a wife is entitled to live incommensurate with the status of her husband. In fact, the Courts below also gave finding of fact that the husband was having sufficient salary income as well as income from his said landed properties and in such a case, the awarding of the sum of Rs.2,500/- per month in favour of the respondent is nothing but a pittance, which could only be termed as subsistence allowance.
17. My discussion supra is mainly focussed on the point that even for argument sake if it is taken that the wife had committed mistake in not living with her husband, such awarding of meagre maintenance as subsistence cannot be found fault with. However, in this case, both the Courts below gave a finding on facts that the wife was not at fault in living away from the husband, as the evidence placed before the trial Court was relied on by them to give the finding that because of some dispute between the husband and wife in connection with the giving of their daughter in marriage, there erupted a rift in their matrimonial relationship. It is a trite proposition of law that this Court while exercising powers under Section 100 of C.P.C. need not interfere with such finding of facts.
18. The learned counsel for the appellant/defendant also cited the decision of the Honourable Apex Court reported in (2005) 2 M.L.J.(S.C.).80 B.P.ACHALA ANAND V. S.APPI REDDY AND ANOTHER.
19. A plain reading of the above excerpt, including the whole precedent would amply make the point clear that the facts and circumstances involved in that case are entirely different from the one involved here. In the cited case the husband did not contest the RCOP proceedings, whereas, the wife in her capacity as the wife of the tenant, so to say, divorcee of the husband, continued the proceedings and in that connection the Honourable Apex Court rendered its findings as under:
“34. We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord, Respondent 1 that Smt Achala, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognised ever by Respondent 1 landlord. We cannot agree. We feel that the appellant was rightly in the facts and circumstances of the case permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to the landlord for and on behalf of the tenant-husband.
35. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the tenant-husband could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted.”
(emphasis supplied)
20. In no way the aforesaid judgement is helpful to the appellant/defendant herein. Hence, I am of the considered view that awarding of maintenance by the Courts below can never be found fault with.
21. Regarding the quantum is concerned there is no argument placed before me. I would like to point out that the awarding of Rs.2,500/-(rupees two thousand five hundred) per month payable by the appellant/defendant/husband to the respondent/plaintiff/wife by no stretch of imagination or even by phantasmegorical thoughts could be stated as excessive and no interference is warranted in this connection.
22. Accordingly, the substantial question of law is answered to the effect that the Courts below were justified in awarding maintenance, despite the fact that in the matrimonial proceedings the Sub-Court and the District Court rendered finding that the wife was guilty of desertion and cruelty.
23. In the result, the second appeal is dismissed. However, the is no order as to costs. Consequently, connected miscellaneous petitions are closed.
Msk 18.04.2011 Index:Yes Internet:Yes To 1. The Principal District Judge, Villupuram. 2. The Subordinate Judge, Kallakurichi. G.RAJASURIA,J. msk S.A.No.585 of 2009 18.4.2011 18.3.2011
