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Pankajini Das and anr. Vs. Hrushikesh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 107 of 1974
Judge
Reported inAIR1986Ori184
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18(2)
AppellantPankajini Das and anr.
RespondentHrushikesh and ors.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateS.P. Mohapatra, Adv.
DispositionAppeal allowed in part
Excerpt:
.....also cruelty. 1 were not leading a happy married life and that there had been occasions when plaintiff no. it has been held in some cases that the conduct of the husband falling short of cruelty may justify the wife in leaving the house of her husband and claim maintenance from him if the court is satisfied that the wife has grave and weighty reason for withdrawal from the society of her husband......a deed of divorce to which plaintiff no. 1 did not agree. she was thereafter driven out of her husband's house and was not even allowed to take the minor sucking-child (plaintiff no. 2) with her. plaintiff no. 1 had to take shelter of the court to get back the custody of her sucking-child. plaintiff no. 1 alleges that defendant no. 1 is guilty of deserting her and that she is entitled to be maintained by him. she further alleges that since some time in the year 1967 defendant no. 1 has been living with anoter woman and has begotten one son and one daughter through her. according to her, defendant no. 1 has either married the said lady or has been living with her in adultery. in view of the income of her husband from his salary as also from the cultivable lands owned by the family,.....
Judgment:

P.C. Misra, J.

1. The plaintiffs have preferred this appeal against the judgment and decree of the Subordinate Judge of Sambalpur passed in Title Suit No. 3 of 1971, The suit is one for a decree of maintenance and for recovery of arrear of maintenance as also for separate residence.

2. Plaintiff No. 2 is the son of Plaintiff No. 1. Plaintiff No. 1 is the legally married wife of defendant No. i. Defendants Nos. 2 and 3 are the father and mother respectively of defendant No. 1; and defendant No. 4 is the surviving member of another branch whose name stands recorded along with defendant No. 2 in respect of the properties described in the plaint schedule.

3. The plaintiffs' case in short is that Plaintiff No. 1 is the legally married wife of defendant No. 1 their marriage having taken place in the year 1961. Plaintiff No. 2 was born out of their wedlock in the month of Sravan in the year 1964 and was thus a minor when the suit was instituted. According to Plaintiff No. 1, she was being ill-treated in the house of her husband-defendant No. 1 and was driven out of his house some time prior to the birth of Plaintiff No. 2 and Plaintiff No. 2 was born in her parents' house. Some time after the birth of Plaintiff No. 2, she was taken to the house of Defendant No. 1 along with her minor child at the intervention of some local gentlemen with the assurance that she would not be ill-treated by her husband or the in-laws. But to her misfortune, the ill-treatment continued as before. Defendant No. 1 was then serving at Bhubaneswar and in spite of repeated requests he refused to take Plaintiff No. 1 with him to Bhubaneswar to live with him, Her parents-in-law, namely, Defendants Nos. 2 and 3, also objected to her staying with Defendant No. 1 at Bhubaneswar. On one occasion Plaintiff No. 1 was wrongfully confined in a room by Defendant No. 1 with the help of his parents and she was forced to execute a deed of divorce to which Plaintiff No. 1 did not agree. She was thereafter driven out of her husband's house and was not even allowed to take the minor sucking-child (Plaintiff No. 2) with her. Plaintiff No. 1 had to take shelter of the Court to get back the custody of her sucking-child. Plaintiff No. 1 alleges that Defendant No. 1 is guilty of deserting her and that she is entitled to be maintained by him. She further alleges that since some time in the year 1967 Defendant No. 1 has been living with anoter woman and has begotten one son and one daughter through her. According to her, Defendant No. 1 has either married the said lady or has been living with her in adultery. In view of the income of her husband from his salary as also from the cultivable lands owned by the family, she claims a maintenance at the rate of Rs. 100/- per month for her and Rs. 30/- per month for Plaintiff No. 2. She claims Rs. 20/-per month towards house rent for her separate residence. Arrear of maintenance at the same rate has been claimed from 11-8-1965 to 11-1-1967, i.e., the date on which the pauper application was presented. The plaint contains a prayer for creating a charge on the properties belonging to the family, the list of which has been given in the plaint.

4. Defendants Nos. 1 to 3 have filed a joint written statement denying the plaint allegations. It has, however, been admitted that Plaintiff No. 1 is the legally married wife of Defendant No. 1. They have alleged that though the married life of Defendant No. 1 with Plaintiff No. 1 was peaceful for some time, it became strained on account of the erratic behaviour of Plaintiff No. 1. It has been further stated that Plaintiff No. 1 used to leave her husband's house without the knowledge and consent of her husband and her parents-in-law at odd hours. She used to be brought back home after much persuasion. According to these defendants, Plaintiff No. 1 left the house of Defendant No. 1 at Burla on 9-10-1963 with all her ornaments and articles and went back to her father's house where she stayed till Asadha in the year 1965 despite all attempts of Defendant No. 1 to bring her back. Plaintiff No. 1, however, came to the house of Defendant No. 1 and lived there for about a month at Patnaikpara in Sambalpur town. She again left the house of Defendant No. 1 during the last part of the night on 11-8-1965 leaving her ailing child in Defendant No. 1's house without the knowledge and consent of the defendants. All other allegations made in the plaint that Plaintiff No. 1 was wrongfully confined; that she was forced to execute a document of divorce; that she was ill-treated by her husband-defendant No. 1 and her in-laws and that she was ill-treated and driven out of her husband's house have been stoutly denied by the defendants. These defendants have denied their liability to pay maintenance to the plaintiffs and they have also disputed the rate at which the maintenance has been claimed.

5. The learned Subordinate Judge on a consideration of the evidence adduced on behalf of the parties has found that Defendant No. 1 is guilty of cruelty and desertion and in the circumstances, the plaintiffs are entitled to get maintenance from Defendant No. 1. He has, however, disbelieved the story of the plaintiffs that Defendant No. 1 has contracted a second marriage. He has fixed the maintenance of Plaintiff No. 1 at Rs. 50/- per month and that of Plaintiff No. 2 at Rs. 20/-per month and has also decreed a sum of Rs. 10/- per month towards separate residence of the plaintiffs. Accordingly, the maintenance at the rate of Rs. 80/- per month was granted to the plaintiffs. Arrears of maintenance at the same rate from 11-8-1965 to 11-1-1967 have also been granted and the suit was decreed in part.

6. Defendant No. 1 who is respondent No. 1 in this appeal has preferred a cross-appeal on the ground that no maintenance whatsoever should have been granted in favour of the plaintiffs.

7. The marriage being admitted, the rightof maintenance of a wife which is an incident of the status of matrimony cannot be disputed Sub-section (1) of Section 18 of the Hindu Adoptions and Maintenance Act (for short, 'the Act') reiterates this position and lays down as a general rule that a Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband during her lifetime. Sub-section (3) of that section is an exception to the aforesaid general rule which lays down that she cannot claim separate residence and maintenance if she is unchaste or ceases to be a Hindu by conversion to another religion. There is no allegation against Plaintiff No. 1 in this case that either she is unchaste or has been converted to some other religion so as to attract the application of Sub-section (3) of Section 18 of the Act The only question to be considered in this case is as to whether the case of Plaintiff No. 1 comes within the scope of Sub-section (2) of Section 18 of the Act.

8. Ordinarily, a Hindu wife is bound to live with her husband under the same roof and protection of her husband as has been held in a large number of cases. Sub-section (2) of Section 18 of the Act, however, lays down the circumstances in which a wife may live separately from her husband without forfeiting her claim to maintenance. The law relating to the claim of maintenance by a wife while living separate from her husband is substantially the same all through, though such a right got the statutory recognition for the first time in the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. The grounds mentioned in Section 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 are basically the same as those mentioned in Section 18(2) of the Act except some slight differences with which we are not concerned in this case.

9. The learned counsel appearing for the appellants has argued that the claim of plaintiff No. 1 for maintenance would squarely come within Clauses (a), (b) and (g) of Sub-section (2) of Section 18 of the Act on the basis of the finding of the learned Subordinate Judge. It has been argued that had it been proved that Defendant No. 1 had been living with another woman as his wife or concubine, it could have also come within Clauses (d) and (e) of Sub-section (2) of Section 18, as the case may be. He, however, fairly concedes that the evidence on record does not establish the allegation that Defendant No. 1 has married another woman or has been living with a concubine so as to bring the case within Clauses (d) and (e) of Section 18(2) of the Act. We would, therefore, confine our discussion as to whether Plaintiff No. 1 has been able to prove that she is entitled to maintenance under any of the Clauses (a), (b) or (g) of the said sub-section.

10. It is an admitted fact that Plaintiff No. 1 while residing in her father's house at Mudipada in Sambalpur town gave birth to a son who is Plaintiff No. 2. It is also admitted that some time thereafter the plaintiffs were taken to the house of Defendant No. 1 about a month after which she left her husband's house leaving her sucking-baby there and that the custody of the baby was obtained by her through Court. Her averments in the plaint clearly make but a case of desertion as also cruelty. The plaintiffs have examined five witnesses including Plaintiff No. 1. The evidence of P.W.I is not very much material in this case inasmuch as he has mostly spoken about the alleged marriage of Defendant No. 1 with another woman named Haripriya which fact has not been established according to the findings of the trial court and not seriously challenged here in this appeal. P.W.2 is the member of the Panchayat who had been called in order to settle up the dispute between the parties and, according to him, the father of Plaintiff No. 1 had complied before the panchayat members about the ill-treatment meted out to her daughter and that she was driven out in the dead of the night from the house of her husband. He also prayed before the panchayat that the custody of the child who was a sucking-baby at that time should have been given to his daughter as the mother is the natural guardian of an infant baby. The evidence of P. W. 3 is also to the same effect as that of P.W. 2. P.W. 4 is Plaintiff No. 1 herself and P.W. 5 is the grand father of Plaintiff No. 1.

The defendant have examined four witnesses of whom D.W. 3 is Defendant No. 1 himself. D. W. 1 has stated that during the Dusehera of 1963 Defendant No. 1 had requested him over telephone from Burla to enquire and find out if Plaintiff No. 1 who had gone away from his house had gone to her grand father's house at Sambalpur. D.W. 2 is a witness who has spoken about the yield of the agricultural lands belonging to the defendants. D.W. 4 is an advocate who claims that he was present in the house of Defendant No. 1 when Plaintiff No. 1 was taken by her father to the latter's house in the presence of several other gentlemen who were called there to witness the same. According to him, plaintiff No. 1 was asked as to when she would come back to which she replied that she was afraid of the performance of Devi Puja by Defendant No. 2 and for that reason, she did not intend to come back at all.

Having gone through the entire evidence on record, we find that a detailed discussion of the evidence of all the witnesses adduced on behalf of either side is not necessary for deciding the question in issue inasmuch as there are some telling circumstances which coupled with the evidence of the parties themselves and broad probabilities gathered from the evidence of other witnesses lead to the irresistible conclusion that Plaintiff No. 1 was deserted by her husband-defendant No. 1 and that she was treated with such cruelty as would justify her leaving her husband's house and live separately from her husband. From the evidence adduced by the parties, it is clear that Plaintiff No. 1 and Defendant No. 1 were not leading a happy married life and that there had been occasions when Plaintiff No. 1 was leaving her husband's house and taking shelter in the house of her parents. Their strained relationship reached a breaking point in the year 1965 when Plaintiff No. 1 finally left the house of her husband leaving her sucking-baby there during the night hours and got back her baby on the intervention of the Court. Plaintiff No. 1 in her pleadings as also in her evidence has asserted that she was ill-treated with cruelty and was driven out of her husband's house by Defendant No. 1 and that she was being neglected by her husband and her in-laws in her day-to-day life. The incidents which led to the quarrel between Plaintiff No. 1 and Defendant No. 1 have been adequately proved by evidence.

The plea taken by the defendants that Plaintiff No. 1 left the house of Defendant No. 1 as she was afraid of Devi Puja is inherently improbable as no Hindu women can ever be afraid of a religious ceremony during the performance of Puja It appears from the evidence that immediately after the incident when she was driven out of the house of her husband without her sucking-baby, she had sent her father along with some Bhadraloks for restoration of the child which request did not find favour with the defendants. In the discussion before the Panchayat, as per the evidence of P.Ws. 2 and 3, the father of Plaintiff No. 1 made a complaint before the Panchayat that his daughter had been ill-treated and was driven out of the house. The very fact that Plaintiff No. 1 came away from the house of her husband during night hours leaving her sucking-baby is one of the circumstances that she was driven out of the house and it disproves the story that she voluntarily walked out of the house of her husband It is rather indicative of a grave situation which compelled her to leave her husband's house as no mother would ever think of leaving back a sucking-baby, who possibly cannot survive without her. The subsequent conduct of the defendants in not making any sincere efforts to take back Plaintiff No. 1 to their house, assuming that the separation between Plaintiff No. 1 and Defendant No. 1 was due to some misunderstanding would suggest that Plaintiff No. 1 was driven away by Defendant No. 1 with an intention to put an end to the marital relationship between them. The word 'desertion' used in Clause (a) of Section 18(2) of the Act means abandonment of the wife by the husband without reasonable cause and without her consent or against her will, though it is difficult to give a comprehensive definition of the same. Generally speaking, desertion begins when the factum of separation of husband and wife is completed with the intention to bring the marital relationship permanently to an end.

It appears from the evidence on record which we have gone through in detail that Defendant No. 1 was ill-treating Plaintiff No. 1 and the former's parents were supporting the actions of their son or at least never objected to the same. Plaintiff No. 1 had to take recourse to the assistance of the Court for obtaining the custody of her child which proves categorically the intention of Plaintiff No. 1 to have her child with her. (Vide Exts. 2 and 3, the orders passed by the S.D.O., Sadar, Sambalpur, in Misc. Case No. 102 of 1965 and the judgment passed by the Sessions Judge in Criminal Revision No. 12(S) of 1965, respectively). Ext. 4 is a notice sent byDefendant No. 1 to Plaintiff No. 1 asking her to come back to his house as he would be going to Sambalpur and would stay there for some time. There is, of course, an allegation in the said notice that Plaintiff No. 1 had been very often leaving her husband's house without the permission of her parents-in-law which injured the family prestige. Ext. 4/a is a reply by Plaintiff No. 1 to her husband-defendant No. 1 expressing her willingness and anxiety to join her husband. She has also mentioned in Ext. 4/a that the procedures she followed for the restoration of the child to her were an outcome of her motherly affection which should be forgotten and excused. The tone of that letter lends an assurance to our conclusion that Plaintiff No. 1 had never intended to offend her husband but, on the other hand, it is Defendant No. 1 who had deserted Plaintiff No. 1 and kept ,back the child while driving her away from his house which was probably a calculated step to put sufficient pressure on Plaintiff no. 1 so that she would agree for a divorce. There has been some exchange of notices and the replies through their respective advocates in this context which is not necessary to be specifically dealt with. By the time when such notices through advocates were exchanged, it may be assumed that the parties had made up their minds to come to court for which they been issuing notices as per the instructions of their advocates and that the contents of these notices do nor expose their true intention. The several incidents of ill-treatment of plaintiff No. 1 in the house of Defendant No. 1 in our opinion, have been proved through evidence of Plaintiff No. 1 herself corroborated by the circumstances spoken to by P.Ws. 2, 3 and 5 and the story of desertion of Plaintiff No. 1 by Defendant No. 1 appears to us to be true. It has been held in some cases that the conduct of the husband falling short of cruelty may justify the wife in leaving the house of her husband and claim maintenance from him if the Court is satisfied that the wife has grave and weighty reason for withdrawal from the society of her husband. In such event, the matter would come under Clause (g) of Section 18(2) of the Act.

11. Having given our anxious consideration to the evidence on record and the broad probabilities fitting in with the human nature and conduct, we would conclude that the plaintiffs have been able to prove that Plaintiff No. 1 had justifying reasons to live separately from her husband and claim maintenance from him. This disposes of the cross-appeal preferred by Respondent No. 1.

12. So far as the main appeal is concerned, the only contention raised by the appellants is that the quantum of maintenance as fixed by the trial court is not adequate in view of the evidence on record. It appears from the evidence of Defendant No. 1 himself that his scale of pay was Rs. 185/- to Rs. 350/- though he has avoided to give out the exact amount he was drawing as his salary. He, however, admitted that he was getting D.A. of Rs. 96/-per month and had been contributing to G.P. Fund and L.I.C. premium. Admittedly, the family of Defendant No. 1 owns about five acres of agricultural lands which, according to Defendant No. 1, are joint with other co-sharers and are being cultivated by his father. Taking into consideration the yield from the agricultural lands of the family and the share of Defendant No. 1 therefrom, we think it appropriate to fix the maintenance at Rs. 75/-per month for Plaintiff No. 1 and Rs. 25/- per month for Plaintiff No. 2, totalling to Rs. 100/-per month. As Plaintiff No. 1 is also entitled to separate residence, we would also allow a sum of Rs. 20/- to be paid to her for her separate residence.

Plaintiff No. 2 was a minor when the present suit was filed Claiming maintenance. From the records we find that he was born in the month of Sravan of the year 1964 though the actual date of birth has not been disclosed. We find from the Almanac that 23-8-1964 was the fullmoon day in the month of Sravan of 1964. Working on an approximation, we fix 23-8-1982 to be the date on which Plaintiff No. 2 became a major. He would not be entitled to maintenance after attaining majority as per the provisions of the Hindu Adoptions and Maintenance Act.

We, therefore, hold that Plaintiff No. 1 would be entitled to maintenance at the rate of Rs. 100/- per month which includes the maintenance of her minor son till he attained his majority on 23-8-1982, and a sum of Rs. 20/-for her separate residence. From the date of attainment of majority of Plaintiff No. 2. Plaintiff No. 1 would be entitled to Rs. 75/-per month as her maintenance together with a sum of Rs. 20/- per month for her separate residence. She would also be entitled to maintenance at the aforesaid rate for the period in respect of which arrears of maintenance have been claimed in the suit. We were told at the Bar that Rs. 70/- per month is being paid to Plaintiff No. 1 during the pendency of this appeal as per the orders of this Court. Any amount paid to Plaintiff No. 1 towards maintenance during the pendency of the suit or this appeal shall stand adjusted against the liability as per the decree in the suit. We further direct that the maintenance so decreed shall be a charge on the share of Defendant No. 1 in the properties owned by the joint family of which he is a member.

13. In the result, the appeal is allowed in part with costs and the cross-appeal is dismssed without costs.

I agree.


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