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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3781 OF 2008
Sau. Geetabai w/o Madhavrao Lokhande,
R/o Naur, Tq. Shrirampur, District
Ahmednagar. APPELLANT
VERSUS
1. Madhavrao s/o Maruti Lokhande
2. Sharad Bhanudas Lokhande
3. Sau. Sangeeta Prabhakar Lokhande,
All r/o Belapur, Tq. Shrirampur,
District Ahmednagar. RESPONDENTS
.....
Mr. V.D. Hon, advocate for the appellant.
Mr. V.D. Sapkal, advocate for the respondents.
…..
[CORAM: V.R. KINGAONKAR, J.]
DATE : 26th & 27th November, 2008
———————————-
ORAL JUDGEMENT :
1. Challenge in this appeal is to judgement
rendered by learned Civil Judge (S.D.), Shrirampur,
whereby Special Civil Suit No. 22/2005 came to be
dismissed.
2. Appellant is the original plaintiff. She
filed suit for separate maintenance allowance and
creation of charge of her maintenance allowance on the
properties of respondent No.1/defendant No. 1. The
respondents No. 2 and 3 are the original defendants
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No. 2 and 3. They have set up claim of adoption of
respondent No. 2 by the respondent No. 1.
3. The appellant claims to be legally wedded wife
of the respondent No.1. Her case before the Trial
Court was that her marriage with the respondent No. 1
was performed prior to about 48 years in accordance
with the rites and tenets of Hindu religion. She
resided with him in the matrimonial house for about a
couple of years after the marriage. He drove her away
after consortium of about two (2) years. Though she
and members of her natural family had made the efforts
for restitution
ig of conjugal rights, yet, he did not
allow her to resume the matrimonial relationship. He
deserted her without any sufficient reason. He is a
womanizer and has squandered lacs of rupees in order
to fulfil his sensual lust. He is a well-off person
having agricultural properties, house property and
movables, as described in the plaint.
4. The appellant further asserted that the
respondents No. 2 and 3 have no concern with the
respondent No. 1. However, in order to grab the
properties of respondent No.1, the respondent No. 2
is now representing himself as an adopted son of the
respondent No. 1 and the respondent No. 3 is
representing herself as the daughter-in-law of the
latter. The appellant further alleges that though her
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brothers maintained her properly, yet, due to oldage,
now, they are reluctant to maintain her. She requires
medical treatment due to oldage. She needs separate
maintenance allowance of Rs. 25,000/- per month. The
respondent No. 1 avoided to pay such maintenance
allowance to her inspite of demands. He is making
haste to dispose of the suit properties. The other
two (2) respondents are bent upon illegally taking
over the properties of the respondent No.1 under false
pretext that they are his adopted son and the
daughter-in-law. Consequently, she filed suit for
separate maintenance allowance and creation of charge
of the
maintenance allowance on his immovable
property.
5. By filing written statement (Exh-22), the
respondent No. 1 resisted the suit. He denied
relationship with the appellant. He denied that she
is his legally wedded wife and that the marriage was
performed prior to about 48 years of the suit. He
contended that the appellant and himself are members
of ‘Taru’ community and there was previous
relationship between her father and his paternal
uncle. He asserted that his father died before his
birth and thereafter, his mother brought up him. He
asserted that he and his mother were under protective
care of his uncle during his minority. He owns seven
(7) acres area of ancestral land. According to him,
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somewhere in 1953-54, his paternal uncle, by name
Vithal and some other relatives had given him offer
for settlement of his marriage with the appellant.
The appellant was then minor and was partly lunatic.
He too was minor at the relevant time. He asserted
that his mother refused to accept the proposal of his
marriage with the appellant. He further asserted that
inspite of the insistence of the paternal relatives of
the appellant, as mother did not budge and, therefore,
the marriage could not be performed. With the result,
the relations between both the families were strained.
Her relatives thereafter had put spokes in settlement
of
his marriage with other brides and, therefore, he
remained unmarried. He thus denied status of the
appellant of his married wife. He contended that her
relatives had obtained her thumb impression on the
false plaint.
6. The respondents No. 2 and 3 submitted that
the respondent No. 1 has adopted the respondent No.2.
They further submitted that the appellant has no locus
standi to seek maintenance allowance from the
respondent No.1. The respondents, therefore, sought
dismissal of the suit.
7. The parties went to trial over issues settled
below Exh-62 by the learned Civil Judge (S.D.). They
adduced oral and documentary evidence in support of
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the rival contentions. The Trial Court came to
conclusion that the appellant did not prove factum of
marriage. The Trial Court held that she is not
legally wedded wife of the respondent No.1. The Trial
Court repelled her contention that the respondent No.
1 drove her out of the the matrimonial home after
couple of years and that she had resided with him for
about couple of years after the alleged marriage. It
is for such a reason that the suit came to be
dismissed.
8. The points for determination in this appeal
are :
(i) Whether, in the facts and circumstances of
the present case, the factum of marriage is
proved by the appellant and the finding of the
Trial Court in this context is improper,
incorrect and illegal ?
(ii) Whether, in the facts and circumstances of
the present case, the appellant duly proved
that she is entitled to seek separate
maintenance allowance and creation of charge
thereof under section 18 of the Hindu
Maintenance and Adoption Act, 1956 on account
of neglect and desertion at hands of the
respondent No. 1 ? If yes, at what rate ?
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9. Heard learned counsel for the parties.
10. This is somewhat unusual case in which after
long drawn period of about 48 years, the appellant
rushed to the Court to claim separate maintenance
allowance. It is somewhat peculiar case wherein the
appellant is old aged woman and so also respondent No.
1 is old man of about 74 years and they are involved
in matrimonial dispute without any past history of
dispute in the last 48/50 years. Admittedly, proposal
of marriage of the appellant with respondent No. 1
was mooted through his paternal uncle, namely, Vithal.
The wife of said Vithal hailed from village Naur and
was in relation with natural family members of the
appellant. This admitted fact has some significance
in the context of the disputed question of marital
status of the appellant. There is also no dispute
about the fact that father of the respondent No. 1
had died while he was in the womb of his mother. The
respondent No. 1 categorically stated in his
pleadings and the affidavit that he and his mother
were under care and protection of his uncle i.e.
Vithal. Needless to say, said Vithal was his
caretaker and used to look after his welfare after
death of his father. There is also no dispute about
the fact that the appellant did not marry anyone else,
nor the respondent No. 1 entered into wedlock with
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any woman during the entire period of 48/50 years.
Why then the dispute cropped up at the old age of the
appellant and the respondent No. 1 ? The answer is
not far to seek. The dispute triggered off only
because the respondent No. 2 claimed himself to be
adopted son of the respondent No. 1 and there was
eminent danger that the properties of the respondent
No. 1 would be taken over by him.
11. It is in the wake of above admitted fact
situation that the evidence of the parties needs to be
scrutinized with realistic approach. The appellant
adduced oral
and documentary evidence in support of
her case. So far as factum of marriage is concerned,
the legal presumption arising out of long term
consortium of a man and woman is unavailable. The
learned advocate for the appellant invited my
attention to observations in “Ranganath
Ranganath Parmeshwar
Panditrao Mali and other v. Eknath Gajanan Kulkarni
and another” AIR 1996 S.C. 1290.
1290 The Apex Court held
that the presumption available under section 112 of
the Evidence Act can be raised when the man and the
woman were found living together as husband and wife
for considerable period. The legality of the marriage
can be presumed on account of long term joint
residence of a man and woman under the same roof. In
the present case, however, it is nobody's case that
the appellant and the respondent No. 1 resided
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together under one roof for a considerable period.
What is asserted by the appellant is that she resided
with him for about a couple of years and was
thereafter driven out of the matrimonial house. There
is hardly any evidence about her joint residence with
him, except and save her own statement and the
statement of PW4 Gangubai, in this context.
12. The marriage under the Hindu law is sacred
ceremony. The averments in the present case would
show that the marriage was allegedly performed
somewhere in in the year 1957. The proof of such
marriage
must have faded due to passage of such long
drawn period. The Trial Court was cognizant of such
fact situation. The Trial Court, however, seems to
have made contradictory observations in this context.
It is observed at fag end of para 24 of the impugned
judgement, as stated below :
“…She has only stated that, there was a
marriage in between her and defendant No. 1,
but it remained unexplained that when mother
of defendant No. 1 had refused the proposal
of her marriage with defendant No. 1 then how
again this marriage was settled and performed.
It has to bear in mind that, there is no
cohabitation in between plaintiff and
defendant No. 1 since long. In this
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situation, strong evidence on the point of
performance of the marriage is expected.”
It is surprising to note, however, that the Trial
Court again, at the opening of para 25 of the impugned
judgement, observed :
“One may say that as marriage is performed
long back i.e. prior to 48 years, evidence on
the point of actual performance of the
marriage cannot be expected. Certainly, this
submission may be impressive prima facie but
in
present case when admittedly plaintiff is
not residing with defendant No. 1 since last
45 to 46 years, acceptable and strong evidence
on the point of performance of marriage is
expected……”
13. It is difficult to appreciate what kind of
“strong evidence” was expected by the learned Trial
Judge when due to passage of such long period, the eye
witness account of the concerned priest and other
independent witnesses may not be available.
14. The degree of proof required in matrimonial
cases arising out of the matrimonial proceedings in
the Civil cases and in respect of criminal offences
would defer from each other. Mr. Sapkal seeks to
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rely on "Bhaurao
Bhaurao Shankar Lokhande and another v. The
State of Maharashtra and another", (AIR 1965 S.C.
1564).
1564 The Apex Court considered question of
culpability under section 494 of the Indian Penal Code
and in the given context, held that the word
“solemnized” means in connection with a marriage, to
celebrate and in due form. There cannot be two
opinion about the legal position that in criminal
cases, likewise one for offence under section 494 of
the I.P.C., strict proof regarding factum of marriage
including performance of the requisite ceremonies is
required to be proved. The ceremonies which are
required to be proved are :
(i) invocation before the sacred fire, and
(ii) saptapadi i.e. taking seven rounds by the
bridegroom and the bride jointly before the
sacred fire.
This legal position is explicit in view of
observations in the treaties on "Hindu Law" (Mulla)
12th Edi. at page 65.
15. The learned Judge of the Trial Court was much
impressed by the fact when the proposal was
disapproved by mother of the respondent No. 1, and
therefore, there was hardly any possibility of the
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performance of the marriage. It is important to note,
at this juncture itself, that mother of the respondent
No. 1 was not in dominating position at the relevant
time. The affidavit of the respondent No. 1 seems to
have been improperly construed by the Trial Court.
What is stated in the pleadings and affidavit of the
respondent is that his paternal uncle – Vithal Balwant
Lokhande, and relatives of the appellant proposed the
marriage of the appellant with him, but while
considering the proposal, his mother and himself
noticed that she was minor and “ardhawat” (——-)
i.e. having imperfect understanding or immature and
somewhat leaning towards silliness. It was for such a
reason that he and his mother firmly denied the
proposal for the marriage. He did not, however,
explain as to what kind of silliness was noticed by
him. His affidavit (Exh-98) would show that the
appellant as well as he himself were minors at the
relevant time. One has to consider the then
prevailing atmosphere in a traditional Hindu society.
The parties are members of ‘Maratha’ caste. They
belong to ilk of agriculturists. The father of the
respondent No. 1 had died before he was born.
Admittedly, his paternal uncle – Vithal Balwanta
Lokhande, was the ‘karta’ of the joint Hindu family,
or at least was having significant role to play in the
matrimonial matters. His mother and he himself were
under the protection and care of his paternal uncle –
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Vithal. It is but natural that said Vithal Balwanta
Lokhande could have the final word in the context of
the marriage which was to be performed. Obviously,
merely because the appellant was not approved by the
mother of the respondent No.1, it could not be said
that the marriage must not have been performed. One
cannot be oblivious of the fact that in those days, in
the traditional Hindu families, the decision in
context of such marriages could be taken by the elder
male members of the family and consultation with the
female members was a rare phenamenon.
16. The
testimony of PW Geetabai (appellant)
reveals that she married the respondent No.1 and
resided with him for about couple of years. She
deposed that after couple of years, he drove her out
of the matrimonial home. Her version purports to show
that for many years, she and her relatives made
efforts for reconciliation, but he did not maintain
her. The Trial Court considered certain admissions of
PW Geetabai while rejecting her testimony. She
admits, no doubt, that she narrated the facts shown in
the plaint as per instructions of her brother. Her
version reveals that she was unable to locate village
panchayat number of house in which respondent No. 1
was residing nor she was able to locate area thereof.
She was unable to tell details about direction in
which the entrance of his house is situated. Still,
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however, she deposed that the house of the respondent
No. 1 comprises of two (2) rooms and also gave names
of the adjoining house owners. She admits,
unequivocally, that the respondent No. 1 is person of
good nature and bears good character. She also admits
that he is not addicted to any vice. It is due to
such admissions that the averments in the plaint
regarding immoral conduct of the respondent No. 1 are
held as baseless. It cannot be ignored, however, that
the averments in the plaint are not originated as per
instructions of the appellant, but they are at the
behest of her brother. She cannot be stamped as a
‘lier’ due
to such baseless allegations made in the
plaint. Her cross-examination reveals that one
Gangadhar Guru was the priest and had performed the
ceremonies of the marriage. She states that said
Gangadhar Guru is not alive. The entire tenor of her
evidence and cross-examination would make it amply
clear that she is candid and did not make any attempt
to support the unfounded allegations about the
womanizing of respondent No. 1 or his being a man of
bad character. Secondly, it can be gathered that she
is a woman of normal understanding. There is no
material on record to infer that she is immature, or a
woman of imperfect understanding, or a woman with
element of half mental growth (——-). So, it does
not stand to reason that due to her being “——–“,
the proposal of the marriage could be rejected by the
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family members of the respondent No.1. She admits,
unequivocally, that when the marriage proposal was put
forth, father of the respondent No. 1 was not alive.
She further admits that then mother of the respondent
No. 1 had disapproved the marriage proposal. As
stated earlier, this admission of the appellant
reveals her candidness. It need not be reiterated
that the proposal was approved or rather mooted by
paternal uncle of the respondent No. 1, namely,
Vithal Balwanta Lokhande and he was the ‘karta’ of the
family. So, his word could have carried much weight.
His wife was in relation with the natural family
members
of the appellant and, therefore, the will of
paternal uncle of the respondent No. 1 could be
dominant factor at the material time. These ground
realities ought to have been properly considered by
the learned Trial Judge.
17. Why such an illiterate and candid woman should
set up a false claim of her status as wife of the
respondent No. 1 ? There appears no satisfactory
answer coming forth. There was no dispute between the
two (2) families since about 45/46 years. The
appellant and the respondent No. 1 are residing at
village Naur and Belapur, respectively. The version
of respondent No. 1 would show that there was no
dispute in between his natural family members and the
paternal family members of the appellant before he had
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gone to see the appellant in pursuance to the marriage
proposal. His version reveals that village Naur is
situated on northern side of the boundary of Vaijapur
town.
18. The testimony of PW3 Smt. Gangubai would show
that she attended marriage between the appellant and
the respondent No. 1. Her version reveals that the
marriage was performed somewhere in 1957. She deposed
that the marriage ceremony was performed in front of
residential wada (house) of father of the appellant at
village Naur. Her version further shows that the said
marriage
was solemnized in accordance with the tenets
and rites of Hindu religion. She narrated that holy
fire (—–) was invoked, ‘kanyadan’ ceremony was
performed and all other requisite ceremonies were
performed in her presence. She is the cousin
sister-in-law of the appellant. Her version further
shows that the appellant is recognized as wife of the
respondent No. 1 since the time of said marriage by
all the relatives. Her testimony reveals that after
couple of years of the marriage, the appellant was
driven out of the matrimonial house and, therefore,
she had returned to house of her parents at village
Naur. The cross-examination of PW Gangubai revealed
that she was unable to locate age of her eldest son as
well as the exact year of his marriage. She was also
unable to locate as to how many years prior the
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marriage of her second son was performed. She could
not give details of the period of marriage of her
three (3) daughters. She was unable to locate age of
the appellant at the time when the marriage proposal
was under consideration. She volunteered, however,
that she was not present at the relevant time. She
admits that her father-in-law by name Govindrao and
father of the appellant were cousins. The Trial Court
discarded her testimony for the reason that she is an
interested witness and also because she was unable to
give details about period of marriages of her sons and
daughters. Her affidavit bears thumb impression. She
is
an illiterate old woman aged about 78 years. The
testimony of PW Gangubai could not be lightly brushed
aside only because she could not locate as to how many
years prior the marriages of her sons and daughters
were performed. The illiterate and rustic woman may
not have immediately recollected such details during
course of cross-examination. She appears to be
natural witness having regard to her relationship with
the appellant. Had she been a tutored witness,
probably, she would have come prepared with all the
details of the marriages in the family. Her version
reveals that she was given gift as token of respect
(—–) in the said marriage. As a relative, may be
the cousin daughter-in-law of father of the appellant,
she was naturally the invitee and is the person having
knowledge of the marriage ceremony.
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19. The factum of marriage between the appellant
and respondent No. 1 is further corroborated by PW4
Laxman. His version reveals that the marriage was
performed between the appellant and the respondent No.
1 in or about 1957. He admits that he was about 5/7
years old at the time of Independence of the Nation.
He belongs to ‘mang’ community and is inhabitant of
village Naur. His version reveals that the appellant
was recognized as wife of the respondent No.1. The
Trial Court discarded his testimony for the reasons
that he was around 17/18 years old at the time of the
alleged marriage.
ig The Trial Court noticed that due to
good relations between natural family members of the
appellant, he might have claimed to have attended the
marriage. The Trial Court observed that when there
were other elder persons of Desai community in the
village, there was no reason why such witnesses were
not examined in preference to PW Laxman. In fact, the
question is as to why his testimony can be discarded.
It is difficult to say that because there were some
other witnesses available, the non-examination of such
witnesses would destroy the credibility of PW Laxman.
He, no doubt, gave general statement as regards the
performance of marriage without elaborating the
ceremonies which were performed. That was not
expected of him. For, he is member of lower strata of
the society i.e. scheduled caste, and in those days,
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could not have been prominently allowed to remain in
proximity of place of the marriage. Moreover, the
Trial Court found that his age was 15 to 17 years at
the material time. Needless to say, as an young boy
then he could have seen performance of the marriage as
such, but was not expected to take keen interest in
noticing what were the ceremonies which were being
performed in the said marriage.
20. The appellant adduced evidence of PW2
Nanasaheb. He is an employee of District Cooperative
Bank. His version reveals that there is bank account
of the
appellant with the Cooperative Bank, bearing
account No. 4361. He deposed that the bank record
indicated that the appellant had opened the account
prior to March, 1995. He admitted, however, that
address of the appellant is not shown on the original
card which he had produced. The name of the account
holder is shown as "Sow. Geetabai Madhavrao
Lokhande". So also, PW5 Hemant corroborated the fact
that a saving account in District Cooperative Bank,
branch at Veergaon bearing No. 3071 stood in name of
the appellant. His version shows that on 18th March,
1986, the appellant had opened the bank account
wherein, name of her husband is shown as "Madhav
Lokhande". The version of PW Hemant corroborates
entries in the bank card (Exh-93). He corroborated
recitals of letter (Exh-94).
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21. The testimony of PW Hemant is dislodged by the
Trial Court on the ground that identity of the bank
account holder is not duly proved. The learned
advocate for the respondents would submit that there
is absolutely no evidence to show that the appellant
had resided at village Babhulgaonganga under Vaijapur
Taluka. He would point out that she categorically
stated that she had left village Naur since many
years. She did not know village Babhulgaonganga. As
stated before, village Naur is adjoining the boundary
(—–) of Vaijapur, which is a taluka place. It is
probable
that the bank account was opened in her name
by her brother. As the Bank’s branch is in Vaijapur
Tehsil, some address of such village might have been
given due to technical reasons. For, village Naur
falls in Ahmednagar District whereas Tehsil place –
Vaijapur comes in limits of Aurangabad District.
Therefore, the appellant’s admission that she does not
know village Babhulgaonganga is of no much importance.
The respondent No. 1 did not pin-point whether there
is any other woman of the same name at village
Babhulgaonganga. Nor any such possibility is stated
during testimony by the respondent No. 1.
22. There are entries in the voters list in the
year 1999 and 1998 (Exh-67 and Exh-68, respectively)
which show that name of the appellant was recorded in
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the voters list as Geetabai Lokhande and her husband’s
name was shown as Madhav Lokhande. These entries in
the public record cannot be ignored without
substantial reason. The entries in the voters list
would show that the appellant was recognized as wife
of the respondent. Atleast it can be said that she
was claiming herself to be his wife in 1998 and 1999.
The appellant appears to be simple and candid woman.
It is improbable that such an illiterate and rustic
woman would have set up a false claim of her being
wife of the respondent No. 1 when the public record
viz. voters list came to be prepared. She is not a
scheming woman.
ig No dispute was in contemplation at
the relevant time. Obviously, such corroborative
piece of evidence ought to be given due weightage.
23. The version of respondent No. 1 comprises of
bare denial to the factum of marriage. He vaguely
stated that due to impediment created by relatives of
the appellant in other proposals of marriage, those
proposals had fizzled out and, therefore, he remained
unmarried. He deposed that the members of the
community used to avoid taking proposal of marriages
to him due to such spokes put by the relatives of
paternal family of the appellant. He did not examine
any witness to show that members of the paternal
family of the appellant had created any impediment in
respect of his other marriage proposals. Needless to
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say, his remaining unmarried for such a long period is
probably due to the fact that the marital relations
between him and the appellant did exist and he was not
interested in any other proposal thereafter or
couldnot get opportunity of second marriage. The
learned Judge of the Trial Court observed that the
denial of the respondent No. 1 was firm. It is
observed :
“As against this, DW1 i.e. defendant No. 1
is firm in his evidence that, there was no
marriage in between him and plaintiff. In the
cross-examination also, nothing on record is
brought to disbelieve the version of this
witness.”
The above observations of the learned Judge of the
Trial Court are rather insufficient to attribute
credence to the version of the respondent No. 1 –
Madhav. It is of common knowledge that mere denial
need not be loosely worded. An empathetic denial,
however, by itself does not give indication of the
version being a gospel truth. It is easy to offer
denial to a fact and difficult to prove such a fact.
The cross-examination of DW1 Madhav (respondent No.1)
reveals that his averment that the appellant was of
imperfect understanding or half-mad is not at all
corroborated and proved. It is difficult to
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appreciate as to how come that at the first blush,
when he and his mother had seen the appellant on
single occasion, he came to conclusion that she was
half-mad. He himself alleges that he and the
appellant were both minors at the relevant time. The
interested and unacceptable version of DW1 Madhav is
not sufficient to wipe out legal impact of the oral
and documentary evidence tendered by the appellant.
24. In matrimonial cases, it is the duty of the
Court to locate truth though the parties may indulge
in blame game or attempt to hide some facts. The
appellant
though levelled false charge of womanising
to the respondent yet very candidly did not subscribe
to it in her oral evidence. However, the respondent
No. 1 attempted to show that she was and is half mad.
This allegation is found to be untrue. The version of
the appellant is corroborated due to entries in the
voter’s lists and Bank record. hence, her version
about her marital status should have been accepted by
the trial Court.
25. The versions of DW2 Dattatraya and DW3
Bhanudas pertain to execution of Adoption-Deed
(Exh-106). It is not necessary to see whether the
respondent No. 2 is legally adopted son of the
respondent No. 1. The fact remains that for the
first time, when the Adoption Deed (Exh-106) was
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brought into existence on 17th June, 2003, the
appellant decided to exercise the right of
maintenance. Until such overtact to impair her right
arising out of matrimonial ties, she continued to
reside with her brothers and paternal relatives
without murmur.
26. The very conduct of the respondent No. 1 in
denying matrimonial relations with the appellant would
imply that he is unwilling to maintain her and has
neglected her. In fact, the appellant came to the
Court at the behest of her brother whereas the
respondent No.
ig 1 offered denial of her being his wife
at the behest of the respondents No. 2 and 3. The
appellant is entitled to claim separate maintenance in
view of the fact that she has been deserted by the
respondent No. 1 and he has neglected to maintain
her. Her case is covered by provisions of Section 18
of the Hindu Maintenance and Adoption Act, 1956.
Having regard to the oldage of the respondent No. 1,
it will have to be said that the earning capacity of
the respondent No. 1 is impaired though he is owner
of the agricultural lands. He admits that he owns 16
acres 8 gunthas land at village Belapur. He, however,
denied that the entire land is irrigated. He owns a
residential house of four (4) rooms. One cannot be
oblivious of the difficulties of agriculturists in the
context of present times. Considering family
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background of the parties, needs of the appellant in
her old age and probable agricultural income of the
respondent No. 1, it would be appropriate and
reasonable to fix an amount of Rs. 2000/- p.m. as
maintenance allowance payable to the appellant. Her
claim for Rs. 25,000/- p.m. is too much exorbitant
and unreasonable.
26. It may be mentioned here that the learned
advocate for the respondent No. 1 placed reliance on
various authorities viz. :
(i)
Bhausaheb alias Sandu s/o Raghuji Magar v.
Smt. Leelabai w/o Bhausaheb Magar,
AIR 2004 BOM 283
(ii) Surjit Kaur v. Garja Singh and others
AIR 1994 S.C.135.
S.C.135
(iii) Joyita Saha v. Rajesh Kumar Pandey
AIR 2000 CALCUTTA 109
(iv) Smt. Yamunabai Anantrao Adhav v.
Anantrao Shivaram Adhav and another
AIR 1988 S.C. 644
(v) Savitaben Somabhai Bhatiya v. State of
Gujarat and others
AIR 2005 S.C. 1809
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It is not necessary to discuss ratio of all these
authorities since each of them is rendered in
different fact situation. The ratio of either of the
authority is not on contextually applicable to the
facts and questions involved in the present case.
27. For the reasons aforestated, I am inclined to
hold that the impugned judgement is unsustainable and
the appellant is entitled to seek separate maintenance
allowance at rate of Rs. 2000/- per month. Hence,
the appeal is allowed. The impugned judgement is set
aside. Instead of dismissal of the suit, the
following final order is substituted.
“The suit is decreed. The plaintiff shall
recover maintenance allowance at rate of Rs.
2000/- (rupees two thousand) per month from
the respondent No. 1. The charge of the
maintenance allowance is created from the date
of the suit till the plaintiff is alive or
till the respondent No. 1 is alive, as the
case may be and is kept on the agricultural
properties shown in para No. 1 of the
plaint.”
. The parties to bear their own costs
throughout."
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[ V.R. KINGAONKAR ]
JUDGE
NPJ/FA3781-08
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