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Kistappa Naicker Vs. Parvati Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberCity Civil Court Appeal No. 63 of 1948
Judge
Reported inAIR1951Mad360; (1950)2MLJ255
ActsHindu Married Women's Right to Separate Residence and Maintenance Act, 1946 - Sections 2; Presidency Small Cause Courts Act, 1882 - Sections 18 and 19
AppellantKistappa Naicker
RespondentParvati Ammal and ors.
Appellant AdvocateT.V. Ramanatha Iyer, Adv.
Respondent AdvocateB.C. Seshachala Iyer, Adv.
Excerpt:
- - the court can, after all, go by the permanent earnings which the husband normally makes and not by any exceptional earnings which occasionally he may make if he chooses to do more work, than ordinarily he does. i am not satisfied that the award of rs. 90 covers the needs of maintenance not only of the plaintiff but of her two children as well......cause court. when that ruling is looked into, it is found that all that it has decided is that a suit for maintenance based on contract or on a declaratory decree can be, and must be, filed in the small cause court. the present suit is not of the kind referred to in that ruling and cannot be treated as governed by it. the present suit is not one based on a declaratory decree, but one filed for a declaratory decree.4. lastly, it is said for the appellant that the award of rs. 80 per mensem is unfair because, as the learned judge below himself observes, the defendant is a man earning only rs. 36 per month. it is true that the judge further observes that whenever the defendant did more work he would earn about rs. 90 to rs. 100 per mensem. the court can, after all, go by the permanent.....
Judgment:

Raghava Rao, J.

1. This city civil Court appeal arises out of a suit for maintenance by the respondent before me against her husband, the appellant before me, The Judge below has decreed the suit for Rs. 30 per mensem as for the future and for Rs. 240 for arrears of maintenance.

2. Mr. Ramanathan, for the appellant, urges that the plaintiff is not entitled to separate maintenance because she chose to keep herself away from the husband's roof; but anyhow there is the fact that the appellant is a man who has taken a second wife. That fact by itself is sufficient ground for award of separate maintenance to the wife under Act XIX [19] of 1946 (Central) in the absence of any unchaste or improper conduct on her part. So much has been held in recent decisions of this Court of which I need only refer to my judgment delivered just today in S. A. No. 556 of 1947. This point of the learned counsel, therefore, fails.

3. Then says Mr. Ramanathan this suit ought not to have been entertained by the City Civil Court because it is a suit cognizable by the Presidency Small Cause Court under Section 18, Presidency Small Cause Court Act (Act XV [15] of 1882). As the learned Judge below has pointed out, the suit is for a declaration of maintenance right and consequently comes within the saving of Section 19, Clause (s) of the Act. For the appellant, it is urged that, there is a ruling of this Court in Pokala, v. Murugappa, 10 Mad. 114 which forbids the entertainment of a suit of the present kind by the City Civil Court and compels its cognizance by the Presidency Small Cause Court. When that ruling is looked into, it is found that all that it has decided is that a suit for maintenance based on contract or on a declaratory decree can be, and must be, filed in the Small Cause Court. The present suit is not of the kind referred to in that ruling and cannot be treated as governed by it. The present suit is not one based on a declaratory decree, but one filed for a declaratory decree.

4. Lastly, it is said for the appellant that the award of Rs. 80 per mensem is unfair because, as the learned Judge below himself observes, the defendant is a man earning only Rs. 36 per month. It is true that the Judge further observes that whenever the defendant did more work he would earn about Rs. 90 to Rs. 100 per mensem. The Court can, after all, go by the permanent earnings which the husband normally makes and not by any exceptional earnings which occasionally he may make if he chooses to do more work, than ordinarily he does. I am not satisfied that the award of Rs. 30 per mensem to the respondent is at all proper or fair in the circumstances of this case. The appellant has, besides the second wife, two children already. It is true that the award of Rs. 90 covers the needs of maintenance not only of the plaintiff but of her two children as well. Even so, I am inclined to think that an award of Rs. 16 per mensem is all that the plaintiff ought to get. The parties will be at liberty to apply for enhancement or reduction according to the circumstances in future. I accordingly vary the decree of the Court below by substituting Rs. 15 per mensem for Rs. 30 per mensem in the decree of the Court below and by substituting Rs. 100 for Rs. 240 for arrears of maintenance. As regards the arrears, I award Rs. 100 a round figure not seriously objected to by either side in place of the Rs. 240 awarded by the Court below. Each party will bear its own coats in this appeal.


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