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A. Gopala Pattar and anr. Vs. Parvathi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1929Mad47; 117Ind.Cas.785
AppellantA. Gopala Pattar and anr.
RespondentParvathi Ammal and ors.
Cases ReferredRamabai v. Trimbak Ganesh Desai
Excerpt:
.....1 says that a large portion of this money belongs to his wife but in view of his failure to come forward with a frank statement of the family affairs, this allegation cannot be believed in the absence of corroboration. in this case it is clear that the husband can well afford to pay rs. wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligations but may well be regarded as a suit against the family itself, represented to her by her husband, through whom alone so long as he is alive she has to obtain the relief......of objections as to whether the maintenance can be made a charge upon the husband's share of the family property. the subordinate judge has disallowed the charge on the authority of jayanti subbiah v. alamelu mangamma [1904] 27 mad. 45 but there is really nothing in that case to support this contention. in fact there are many observations in the judgment which would tend to show that a charge might be given. it cannot be disputed that a widow is entitled to have a charge for maintenance on her husband's estate, even if her husband was a member of an undivided family. it is difficult to see any distinction between the position of a widow who has been obliged to enforce her charge for maintenance and that of an abandoned wife who is obliged to do the same. it is contended for the.....
Judgment:

Phillips, J.

1. These two appeals are against a decree obtained by the plaintiff-respondent for maintenance and return of jewels. The former appeal is by defendant 1, respondent's father-in-law, against the latter portion of the decree and the latter appeal is by defendant 2, respondent's husband, against the decree for maintenance. So far as the respondent's right to maintenance is concerned the appeal is not pressed, for the relations between the respondent and her husband and his father, defendant 1 and the brother of defendant 2 have been so strained that criminal cases have arisen and undoubtedly the respondent suffered considerable ill-treatment at the hands of her husband and his family.

2. Appeal No. 115 of 1924 relates to jewels which are said to have been given to the respondent at the time of her nuptials. The oral evidence is in some respects discrepant, but as it is given 12 years after the events took place, too much importance cannot be attached to such discrepancies in details. What is of weight is the evidence of P.W. 7, a High Court vakil. He says that defendant, when asked by him to return the jewels and vessels replied that they were given as a gift and would not be returned. This is a clear admission by defendant 1 that some jewels were given at the time of marriage. This witness has not been cross-examined and it is therefore clear that this admission is not disputed. It is not suggested that there were any other jewels than these claimed in the plaint, and, therefore, the admission must relate to the receipt of the jewels, etc., for which the plaintiff has obtained a decree. From this witness's evidence alone it is clear that the lower Court's decree is correct.

3. Appeal No. 116 of 1924 relates to the rate of maintenance awarded, namely, Rs. 20 per month: The amount of maintenance is usually a question which can best be decided by the trial Court but in this case neither party is content with the rate awarded, for the plaintiff has filed a memorandum of objections. This being so, it is necessary to discuss the evidence as to the income of the defendants' family and also the amount of maintenance which is suitable for a person in the plaintiff's position in life. Defendant as the manager of the family is in the best position to state what the income of the family is, but instead of frankly putting forward such a statement, he had attempted to make out that the income apart from certain family lands and lands under mortgage is very low. The plaintiff has been able, fortunately for her, to obtain various documents which show clearly that defendant 1 has been engaged in money-lending transactions from which he must have obtained considerable income. Defendant 1 says that a large portion of this money belongs to his wife but in view of his failure to come forward with a frank statement of the family affairs, this allegation cannot be believed in the absence of corroboration. According to the evidence on record, the defendants' family possessed property worth Rs. 32,000 including the lands. The income of the lands is stated to be, according to defendant, 1 Rs. 800 per annum, and according to the plaintiff Rs. 1,200 per annum. When we add to this the income from money lending, it is clear that the defendant's family is possessed of a considerable income, at least Rs. 200 a month and probably more, for every inference must be drawn against defendant 1 who has not put the facts which are within his knowledge at the disposal of the Court. Besides this evidence, we have the definite statement of the plaintiff in which she gives details to the effect that she cannot live on for less than Rs. 30 a month.

4. We also have the evidence of P.W. 3 who says that anything less than Rs. 35 a month may not suffice for the plaintiff's maintenance. Neither the plaintiff nor this witness has been cross-examined on this point and considering the status of the parties Rs. 30 a month is not an unreasonable amount. In fixing the maintenance at Rs. 20 a month the Subordinate Judge says that he considers that to be the minimum for plaintiff's subsistence. In a case of this sort where the plaintiff has been driven out by her husband and her family is in a position to pay more, she is entitled to be kept in the same manner to which she has always been accustomed, provided it does not do [injustice to her husband and to the rest of the family. In this case it is clear that the husband can well afford to pay Rs. 30 a month and that rate must be awarded.

5. A further question arises on the memorandum of objections as to whether the maintenance can be made a charge upon the husband's share of the family property. The Subordinate Judge has disallowed the charge on the authority of Jayanti Subbiah v. Alamelu Mangamma [1904] 27 Mad. 45 but there is really nothing in that case to support this contention. In fact there are many observations in the judgment which would tend to show that a charge might be given. It cannot be disputed that a widow is entitled to have a charge for maintenance on her husband's estate, even if her husband was a member of an undivided family. It is difficult to see any distinction between the position of a widow who has been obliged to enforce her charge for maintenance and that of an abandoned wife who is obliged to do the same. It is contended for the appellants that the right of the wife is only a right against her husband personally and that therefore no charge can be given against the family property. If she has this right against her husband personally it can be enforced by the attachment and sale of his property and that property consists of an undivided share in the joint family property. A charge therefore so long as the husband is alive and available is not really of such benefit to the wife for in effect she is able to in-force a charge in execution, but if the husband should die or abscond, her right would be very considerably impaired, for she could no longer enforce the personal obligation, and would have to institute' proceedings against the family and against the family property. If there is no legal objection to a charge being given it is. very desirable that in this case the plaintiff should obtain that right. So long ago as 1872 the right of a wife to a charge against the joint family property was recognized in Ramabai v. Trimbak Ganessh Desai 9 Bom. H.C. 283. In that case the husband had disappeared but it is difficult to see how that can make any difference in the right of the wife. Therefore this case is a direct authority for the grant of a. charge. That such a charge can be given is also upheld in Unnamali Ammal v. E.W. Wilson : AIR1927Mad1187 , although in that case the question was whether the charge was entitled to preference over the husband's debts and it was held that the charge should only come into force against the surplus assets of the insolvent's estate. Such a charge is also recognized in Lakshmi Devi Amma v. Nagganna Naidu : AIR1925Mad757 where Srinivasa Ayyangar J. observed at p. 468. (of 21 L. W.).

It is true that the Hindu law imposes an obligation, on the Hindu husband to support his wife without any reference Ho any property or share possessed by him but when the joint family is possessed of property, a claim by a. wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligations but may well be regarded as a suit against the family itself, represented to her by her husband, through whom alone so long as he is alive she has to obtain the relief.

6. This principle of the charge being recognized in various decisions and expressly laid down in the case of Ramabai v. Trimbak Ganesh Desai 9 Bom. H.C. 283, I think there is no objection in law to such a charge being granted. ,

7. The appeals are accordingly dismissed with costs, and on the memorandum of objections the lower Court's decree will be modified by awarding maintenance at Rs. 30 a month and a charge upon the husband's share of the joint family property will also be given. The appellants will pay plaintiff-respondents' costs of the memorandum of objections in this Court and as regards the costs in the lower Court the order for proportionate costs will stand, as the amount on which the costs will have to be calculated is increased by this order. No orders are necessary in C.M.P. 264 of 1928.


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