JUDGMENT
V. Gopalaswamy, J.
1. The unsuccessful defendant-husband has preferred this appeal against the judgment dated 24-11-1980 and decree dated 3-12-1980, decreeing the plaintiff-wife’s suit, holding that she is entitled to arrear, pendente lite and future maintenance at the rate of Rs. 90/- per month, besides Rs. 1,000/- for separate residence.
2. The plaintiff’s case may be briefly stated as follows :
The plaintiff is the legally married wife of the defendant and they lived as husband and wife and out of their wedlock a son and a daughter were born to them. The son did not survive for long. By the date of filing of the suit the daughter was aged about 23 years and she was already married. In or about Ashadh 1974 the defendant had brought a young girl named Padmavati and married her and lived with her in the same house which was objected to by the plaintiff. Subsequently as the plaintiff persisted in her objection against the said Padmavati and the defendant living as husband and wife in the same house, the defendant had driven her (plaintiff) out of the house when she was compelled to take shelter in the house of her father. The plaintiff has no independent means of her own and the defendant has neglected to maintain her. The defendant has substantial properties and by his own conduct he had compelled the plaintiff to live with her father. As the defendant continued to live with Padmavati, who had given birth to three children through him, the plaintiff had no other alternative except to file the present suit praying for maintenance at the rate of Rs. 100/- per month and a sum of Rs. 1,000/- towards separate residence.
3. The gist of the averments made by the defendant in the written statement filed by him may be briefly summarised as follows :
The plaintiff is his legally married wife. Since 4 or 5 years the plaintiff was in the habit of selling paddy and rice from the house and out of the money so realised by her, part of it she was sending away to her father and the rest of it she used to spend for herself. The defendant objected to her selling paddy and rice in that manner. The plaintiff was a sickly woman and was not able to properly discharge her duties as a housewife and she was not even cooking food for him, The defendant did not marry Padmavati nor did she live with him in the same house and he did not have any issue through the said Padmavati. The plaintiff has given an exaggerated account of his properties. The defendant is always ready and willing to maintain the plaintiff provided she lives with him. The plaintiff has filed the suit with false allegations and the same is not maintainable.
4. From the pleadings, evidence adduced in the case by the parties, and the arguments advanced by the learned counsel for the appellant, the following points arise for consideration :
(1) Whether at all the plaintiff is entitled to claim maintenance and separate residence under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 ?
(2) In case the plaintiff is so entitled to claim maintenance and separate residence, what is the quantum of maintenance payable to her and what is the proper amount payable to her towards separate residence ?
5. In support of her case the plaintiff has examined herself as PW 1 and has also examined PW 2, who resides in a house three houses away from her husband’s house. The defendant examined himself as DW 1, as the only witness in the case. Besides adducing oral evidence the plaintiff has relied on the documentary evidence Exts. 1 to 3 in support of her case. The defendant did not adduce any documentary evidence.
6. Point No. 1 : That the plaintiff is the legally married wife of the defendant is not in dispute. The defendant further admits that through the plaintiff a daughter was born to them out of their wedlock and she was aged about 23 years and she was married by the date of filing of the suit. The evidence of the plaintiff (PW 1) shows that she and the defendant were married about 30 years ago and they lived a happy married life for about 20 years. From the evidence of PW 1 it is seen that after the defendant had brought a young girl named Padmavati to his house and had married her and as both the defendant and Padmavati started living in the same house as husband and wife in the very presence of the plaintiff, the relationship between the plaintiff and the defendant became strained. It is in the evidence of the plaintiff that she was driven out of the house by the defendant shortly after he started having sexual relationship with Padmavati in his house The plaintiff has further started that the defendant had three issues, two sons and one daughter, through the said Padmavati. The defendant has put a suggestion to the plaintiff that she left the house when their daughter was aged only 6 years and the plaintiff denied the suggestion. The said suggestion is a false suggestion, is evident from the fact that even according to the defendant in his written statement the plaintiff left his house only in or about the year 1976. The plaintiff’s evidence that the defendant was living with Padmavati as his second wife and that through her he had three issues, has not been shaken in cross-examination. The evidence of the plaintiff that it was only after the defendant brought the said Padmavati to their house and started having sexual relationship with her that the relationship between the plaintiff and the defendant became strained, sounds probable and true.
P.W. 2 has his house, three houses apart from the house of the defendant. So he is a competent witness to depose about the family affairs of the defendant. He deposed that the plaintiff is the defendant’s first wife and the defendant married a second wife about 5 years ago and through her he had two sons and a daughter. There is nothing in the evidence of P.W. 2 which creates a doubt regarding his testimony that the defendant was living with his second wife in his house and through her he had three children. So the evidence of P.W. 2 corroborates the version of the plaintiff that as the defendant started living with another lady as his second wife in the same house, the relationship between the plaintiff and the defendant became strained, as a result of which she was compelled to leave the house and take shelter in her father’s house.
7. The defendant (D.W. 1) stated on oath that the plaintiff left his house when his daughter was aged only about 6 years. The said statement is a false statement is evident from the fact that it is not the case of the defendant in his written statement. On the other hand, according to the averments in the written statement the misunderstanding between the defendant and the plaintiff started only few years prior to the date of filing of the suit. Hence it is seen that D.W. 1 is not a truthful witness. So his denial about his marrying a second wife and having three issues through her cannot be accepted as true.
8. Apart from the oral evidence, documentary evidence adduced on behalf of the plaintiff fully supports her case. Plaintiff has filed the voters list of mouza Raghubirpatna of the year 1975 and the birth certificate of the son of the defendant through Padmavati, which are marked as Exts. 2 and 3 respectively.
In Kirtan Sahu v. Thakur Sahn, Vol. XXXVIII (1972) CLT 82 (Full Bench), this Court held :
“……The electoral roll is a public record made in performance of duty specially enjoined by law and an entry made thereunder would directly come under Section 35 of the Evidence Act. The electoral roll is a public document as contemplated under Section 74(1)(iii) of the Evidence Act, because it is a document forming the act of public officers. To such a public document the presumption under Section 81 of the Evidence Act has application. When a public document is produced before the Court, it shall presume the genuineness of such document……”
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“The electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined in Court to prove the roll. As a public document it is admissible under the provisions of the Evidence Act.”
In the said decision this Court further held that when the electoral roll which is a public document is produced before the Court, the Court is required to presume its genuineness, and by virtue of Section 81 read with Section 4 of the Evidence Act, the Court shall regard the fact entered in the electoral roll as proved unless and until it is disproved. Relying on the above Full Bench decision of this Court, in Linga Mallik v. Ajudhya Mallikani, AIR 1974 Orissa 107, this Court held that an entry in the electoral roll showing the plaintiff to be the wife of her deceased husband is a relevant fact admissible in evidence. So the recitals in Ext. 2, the voters list, clearly show that Padmavati Mohapatra, aged 20 years on the relevant date, was the wife of the defendant and was living in the same house with the defendant. Ext. 3 is the certified copy of the birth certificate issued under Section 17 of the Registration of Births and Deaths Act, 1969 by the Department of Health & Family Planning, Government of Orissa, which is also admissible as a public document under Section 35 of the Evidence Act. So in view of Section 81 read with Section 4 of the Evidence Act, the recitals in Ext. 3 that a male child by name Manoranjan Mohapatra whose father’s name is Purnananda Mohapatra, was born in village Raghubirpatna on 30-7-77 can be safely relied on. The defendant is admittedly a resident of village Raghubirpatna. He admits that in his village there is no other person named Purnananda Mohapatra, son of Dhadhibanau Mohapatra, accepting himself, So the recitals in Exts. 2 and 3 clearly establish the case of the plaintiff that during the relevant period the defendant and the said Padmavati were living in the house of the defendant as husband and wife and through Padmavati the defendant had a son. At the time of the marriage between the defendant and Padmavati, the defendant has his spouse, the plaintiff, living, and so the defendant’s marriage with Padmavati in contravention of Clause (1) of Section 5 of the Hindu Marriage Act is void ab initio. Hence as the plaintiff has satisfactorily proved that during the relevant period, the defendant was having sexual relationship with another lady Padmavati in the same house, under Section 18(2) of the Hindu Adoption and Maintenance Act, the plaintiff was entitled to live separately from the defendant without forfeiting her claim to maintenance and provision for separate residence.
9. Point No. 2 :–So it remains to be considered as to what is the quantum of maintenance that should be awarded to the plaintiff. On a consideration of the evidence on record it is seen that it can be safely held that by the relevant date the defendant was owning Ac. 7.11 of land. There is reliable evidence to show that the defendant has interest in a Pokhari. Hence having regard to the properties of the defendant, I agree with the finding of the trial court that the defendant must be getting an annual income of about Rs. 3,500/- per year from his properties in the minimum. Considering such factors as the status of the parties, cost of, living by the relevant date, the other obligations of the defendant, besides his obligation to maintain the plaintiff, etc., it is quite reasonable if maintenance is calculated at the rate of Rs. 3/- per day. Likewise awarding the plaintiff a sum of Rs. 1,000/- towards separate residence also is quite reasonable. Hence I agree with the trial court that it is just and reasonable that the plaintiff should be awarded maintenance at the rate of Rs. 90/- per month besides Rs. 1,000/- towards her separate residence.
10. In the result, I see no merit in the appeal and therefore I hereby confirm the judgment and decree passed by the trial court. The appeal is accordingly dismissed; but as none appeared for the respondent in this Court, there will be no order as to costs.