Skip to content


R. Durairaj Vs. Seethalakshmiammal and Others - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberAppeal Suit No. 483 of 1981
Judge
Reported inAIR1992Mad242; (1992)IMLJ160
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18 and 20; Code of Civil Procedure (CPC), 1908 - Order 6 - Rule 1
AppellantR. Durairaj
RespondentSeethalakshmiammal and Others
Appellant AdvocateC. Uma Shanker, Adv.
Respondent AdvocateP. Poppin Fernando, Adv.
Excerpt:
.....- whether decree passed by trial court in favour of 1st plaintiff for certain sum as 2nd plaintiff marriage expenses incurred by her sustainable - in case 1st plaintiff had spent for marriage she could have pleaded in plaint that she has done so - no such plea has been made by way of amendment in plaint - it is fundamental principle in pleadings that no amount of evidence can be looked upon in support of plea having no foundation in pleadings - decision of court cannot be based on grounds outside pleadings - only because she has stated in course of her evidence that she spent for marriage decree cannot be passed in her favour - held, decree in favour of 1st plaintiff set aside. - - it is also contended that the wife herself is a well to-do-lady and hence she can maintain herself and..........plaintiffs 1 and 2 i.e., the mother and daugher filed the suit for their maintenance and for the marriage expenses of the second plaintiff daughter on the following allegations :--the first defendant neglected both the plaintiffs and he has been living with another lady by name jayam for the past 12 years and he had married her and has begotten four children through her. first defendant was an executive officer in the hindu religious and charitable endowments department. four years back he was dismissed from service and now he is living with his second wife jeyam along with her children in a portion of the house in which the plaintiffs and the second defendant are living. not only the first defendant did not take care of the plaintiffs but also he picked up quarrels with them. he did.....
Judgment:

1. This is a maintenance matter. The first defendant-husband of the first plaintiff and father of the second plaintiff and son of the second defendant is the appellant.

2. Plaintiffs 1 and 2 i.e., the mother and daugher filed the suit for their maintenance and for the marriage expenses of the second plaintiff daughter on the following allegations :--

The first defendant neglected both the plaintiffs and he has been living with another lady by name Jayam for the past 12 years and he had married her and has begotten four children through her. First defendant was an Executive Officer in the Hindu Religious and Charitable Endowments Department. Four years back he was dismissed from service and now he is living with his second wife Jeyam along with her children in a portion of the house in which the plaintiffs and the second defendant are living. Not only the first defendant did not take care of the plaintiffs but also he picked up quarrels with them. He did not care to do anything for the marriage of the second plaintiff. The defendants are possessing properties worth about two lakhs and taking into consideration the status of the plaintiffs a sum of Rs. 40,000/ - would have tobe spent for the marriage of the second plaintiff consisting of Rs. 30,000/- for jewels and Rs. 10,000/- for other expenses. The first plaintiff requires a minimum of Rs. 300/- per mensem for her maintenance and the second . plaintiff will require a minimum of Rs. 200/-per mensem for her maintenance till the time she is married. Therefore the suit for Rs. 40,000/- towards marriage expenses of the second plaintiff and for Rs. 300/- per mensem towards the maintenance of the first plaintiff and Rs. 200/- per mensem towards the maintenance of the second plaintiff till her marriage, and a charge over the second schedule mentioned properties of the defendants for all these amounts.

3. The first defendant contested the suit contending that the first plaintiff is the daughter of the second defendant's sister and both the plaintiffs are living with the second defendant and the second defendant who is in possession of the entire family properties is spending the entire income therefrom for the benefit of the plaintiffs. It is only at the investigation of the second defendant the suit has been filed. This defendant has no income of his own and he is in a strained financial circumstance. For these reasons he is not liable to pay any maintenance to the plaintiffs. This defendant is not liable to pay any. marriage expenses to the second plaintiff.

4. On these pleadings the following issues were framed:--

1. Whether the claim of Rs.40,000/-for the marriage expenses of the second plaintiff is true and valid? .

ii) Whether the claim for maintenance is true and sustainable?

iii) Whether the plaintiffs and second defendant filed this suit?

iv) To what relief are the plaintiffs entitled?

5. It appears during the pendency of the suit, the marriage of the second plaintiff was celebrated. The first plaintiff has claimed that she has celebrated the marriage while the first defendant has claimed that it was he who celebrated the marriage. On consideration of the evidence adduced in this regards the trialCourt found that it was the first plaintiff who celebrated the marriage and she has spent a sum of Rs. 25,000/- for that. It held that the first plaintiff is entitled to maintenance of Rs. 150/- per mensem from the first defendant and the second plaintiff Rs. 100/- per mensem till her marriage i.e., on 13-7-1979. It further held that the first defendant shall pay the amount spent by the first plaintiff for the marriage of the second plaintiff. On these findings the trial Court decreed the suit directing the first defendant to pay a sum of Rs.25,000/- to the first plaintiff for the marriage expenses and also granted.a maintenance of Rs. 150/- per mensem to the first plaintiff and maintenance of Rs. 100/- per mensem to the second plaintiff till she was married on 13-7-1979. The trial Court has also ordered that half share in the schedule mentioned properties will be subject to a charge for the said amounts decreed.

6. After the appeal was filed the second plaintiff died in the year 1982. This is reported by both sides. No legal representative has been brought on record. Therefore the appeal as against the second plaintiff stands abated.

7. In this circumstanes the points that arise for consideration are :--

i) Whether the finding of the trial Court that the first plaintiff is entitled to maintenance of Rs. 150/- per mensem is correct?

ii) Whether the decree passed by the trial Court in favour of the first plaintiff for a sum of Rs. 25,000/- as the second plaintiff's marriage expenses incurred by her in sustainable?

8. According to the plaintiffs the first defendant was living with a woman by name Jeyam and he also married her and now through her he has got four children. This is not denied in the written statement. However it appears in the evidence the first defendant as D.W. 1 had denied that he married Jeyam. But then he has admitted that he has in Ex. A2 reply notice sent to him to a notice issued by the plaintiffs he has admitted that he has married Jeyam. Therefore it is a fact that he married Jeyam and he has also got Four children through her. Tt is also not in disputethat the first defendant is living with the said Jeyam and the four children in the same house in which the first plaintiff is now living and she was living with the second plaintiff until her marriage in a portion thereof. Under S. 18(1) of the Hindu Adoptions and Maintenance Act, wife will be entilled to maintenance from her husband if he has any other wife living. Therefore it is clear that from the admitted facts the first defendant is liable to pay maintenance to his wife the first plaintiff.

The trial Court has awarded a maintenance of Rs. 150/- per mensem to the first plaintiff. It is contended that the first defendant is without work now, he having been dismissed from his Job as an Executive Officer in the Hindu Religious and Charitable Endowments Department, and therefore he is not in a position to pay any maintenance to the first plaintiff. But as seen from the schedule of properties in the plaint he is entitled to half share of 10.85 acres of nanja land and 5.45 acres of punja land and three houses and a vacant land. Therefore there is no merit in his saying that he has no means to pay maintenance to his wife. It is also contended that the wife herself is a well to-do-lady and hence she can maintain herself and hence she cannot claim maintenance from her husband. She has just stated in her evidence that she has acquired after her father's death dry land of 1.30 acres with a pumpset and another dry land of 56 cents. She has also admitted that she has given a sum of Rs. 5,500/- to others but she is not receiving any interest therefrom. She has further stated that she is in possession of a sum of Rs. 3,500/- below the sale proceeds of a house and another sum of Rs. 2,000/-. From these it cannot at all be stated that the first plaintiff has sufficient mesne to maintain herself.

The first defendant being the husband of the first plaintiff he is bound to maintain her. Considering all these circumstances the maintenance amount of Rs. 150/- per mensem awarded to her by trial Court cannot at all be said to be unreasonable and therefore that has to be confirmed.

9. Coming to the next point, the suit has been filed by both the mother and daughterfor their maintenance and for Rs. 40,000/- for the expenses for the marriage of the second plaintiff-daughter who was unmarried. During the pendency of the suit i.e., on 13-7-1979 the marriage of the second plaintiff was celebrated. It must be remembered that only the second plaintiff can claim for expenses for her marriage from the first defendant her father, and the first plaintiff has no right to claim for expenses of the marriage of the unmarried second plaintiff. Therefore though both the plaintiffs have filed the suit together, in the event of passing a decree for the marriage expenses of the unmarried second plaintiff, that decree can be passed only in favour of the second plaintiff. But as stated above, the second plaintiff's marriage has taken place during the pendency of the suit. Even then a decree could have been passed in her favour so that she could pay off any amount spent by the first plaintiff or anybody else for her marriage.

But curiously the trial Court has passed a decree for Rs. 25,000/- in favour of the first plaintiff on the ground that she has spent for the marriage of the second plaintiff. If the first plaintiff has spent for the marriage of the second plaintiff she should have pleaded in the plaint that she has done so and she should have also pleaded for what all the items of expenses for the marriage she has spent and what is the total amount she has spent. No such plea has been made by way of amendment of the plaint. It is not even prayed that a decree shall be passed in her favour. In this position no decree can be passed in favour of the first plaintiff for the marriage expenses of the second plaintiff.

Without such a plea having been made in the plaint, it appears during the course of her evidence as P.W. 1 she seems to have stated that she has spent for the marriage of her daughter. She first spent for the marriage. The question is: Can a decree be passed without any pleadings that she spent for the marriage and as to how much amount she has spent and without any prayer that a decree shall be passed in her favour?

It is the fundamental principle in the law of pleadings that no amount of evidence can belooked upon in support of a plea having no foundation in the pleading, and a decision of a case cannot be based on grounds ouside the pleadings. If the first plaintiff had pleaded that she has spent for the marriage and what amount she has spent and what are the items of expenses for which she spent, the first defendant would have had an opportunity to meet this case of her's by filing a written statement. In this position only because she has stated in the course of her evidence that she has spent for the marriage a decree cannot be passed in her favour. The trial Court itself has found that the first plaintiff as P.W. 1 has not produced accounts for the marriage expenses incurred by her for the marriage, and she has not slated what in the quantum of jewels she has given to her daugher. The lower Court has further found that the first plaintiff (P.W. 1) has admitted that the marriage was celebrated at the house of the bridegroom and the expenses of the marriage was borne by the bridegroom. In this state of evidence the trial Court just stating that taking into consideration the status of the parties and other circumstances, has granted Rs.20,000/- as the amount spent for jewels and a sum of Rs. 5,000/- for other marriage expenses. Thus apart from there being no pleadings, the evidence also is not sufficient to come to a conclusion that she has spent any definite amount either for jewels or for other expenses. Thus viewed, the finding of the trial Court that she has spent Rs. 20,000/- for jewels and Rs. 5,000/- for expenses cannot be sustained. Here it may be relevant to note that as per S. 20 of the Hindu Adoptions and Maintenance Act besides father, mother also is bound to maintain her daughter.

10. In the result therefore in so far as the maintenance awarded to the first plaintiff and charge for that amount over half share of the plaint schedule properties is concerned it is confirmed. The decree in favour of the first plaintiff for Rs. 25,000/- is set aside. The appeal is disposed of in these terms. There will be no order as to costs.

11. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //