SA/504/1999 of P.CHIKKARAJ AND 2 OTHERS Vs K.N.DHANALAKSHMI AND ANOTHER on 21 November 2002

:J U D G M E N T

The appellants 1 to 3 are the defendants.

2. Dhanalakshmi, the first respondent herein, is the wife ofChikkaraj, the first appellant herein. On her behalf and on behalf of herminor son Prabhakaran, the second respondent, as his natural guardian, filedthe suit in O.S.No.240 of 1990 praying for granting maintenance of Rs.500/-per month and for division of the suit properties into six equal shares and toallot two such shares to the second respondent being the son of the firstappellant. The said suit was dismissed by the trial Court. However, theappeal filed by the plaintiffs/ respondents before the lower appellate Courtwas allowed and the suit was decreed in favour of the plaintiffs. Hence, thissecond appeal by the defendants/appellants.

3. The case of the plaintiffs is as follows:

"The first plaintiff Dhanalakshmi got married to Chikkaraj, the firstdefendant in November, 1982. The defendants 2 and 3 are the sisters of thefirst defendant. Since the date of marriage, they were living in Door No.71,Orumanaicknen Street, Sathiyamangalam, the husband's place. Out of the saidwedlock, Prabhakaran, the male child was born on 1.6.1988. Till then, theywere living together. At the instigation of the defendants 2 and 3, the firstdefendant attempted to drive away the first plaintiff from the said premises.So, she filed the suit in O.S.No.1087 of 1987 against all the three defendantsseeking for declaration of her right of residence in the property along withthe first defendant and permanent injunction restraining the defendants fromsending the first plaintiff out of the suit property by force. Since the suitwas not contested, the same was decreed ex parte. Then, the first defendantfiled O.P.No.63 of 1987 seeking for divorce which was dismissed for default.In the meantime, the second plaintiff was born on 1.6.1988. Despite thedecree, she was not allowed to live in the premises. Therefore, she joinedwith her parents along with the child. In the meantime, on 12.11.1987, thefirst defendant issued a notice to the plaintiff intimating that he wouldpropose of file a petition for divorce and that the partition of theproperties among co-sharers have already been done. Reply was sent statingthat the second plaintiff, the minor son was born and as such, the allegedpartition would not bind upon the plaintiffs. Thereafter, the suit was filedby the plaintiffs for maintenance as well as for a decree over the division ofproperties into six equal shares and to allot two shares to the secondplaintiff."

4. The suit was contested by the defendants by contending as follows:

4. The suit was contested by the defendants by contending as follows:

"Though marriage was held between the first plaintiff and the firstdefendant in November 1982, the first plaintiff lived till December 1 983 withthe first defendant. Thereafter, the first plaintiff has been living with herparents and as such, the second plaintiff was not born out of that wedlock.There is enmity between the first plaintiff's father and the first defendant,since the first plaintiff's father initiated proceedings against the firstdefendant for recovery of amount on the basis of the mortgage deed. As thefirst defendant has no access with the first plaintiff from December 1983 andas she was having illicit intimacy with one Palanisamy, third party and thesecond plaintiff was born out of the said intimacy, the plaintiffs would notbe entitled to maintenance or partition."

5. On the strength of the above pleadings, the trial court framedvarious issues. Before the trial Court, the first plaintiff examined herselfas P.W.1 and marked Exs.A1 to A14. On the side of the defendants, the firstdefendant examined himself as D.W.1 and two other persons as D.W.2 and D.W.3,besides marking Exs.B1 to B3. As Court documents, Exs.C1 to C3 were marked.

6. The trial Court after considering the evidence, oral anddocumentary, adduced by both parties, dismissed the suit holding that thesecond plaintiff was not born to the first defendant and as such, theplaintiffs would not be entitled to maintenance as well as the relief ofpartition.

7. Aggrieved by the same, the respondents herein preferred A.S.No.40

8. After scrutinising the materials available on record and on hearing the counsel for parties, the lower appellate Court set aside thedecree of the trial Court and allowed the appeal by granting the reliefssought for in the suit to the plaintiffs by holding that the second plaintiff,minor son was born out of the wedlock between the first plaintiff and thefirst defendant. Hence, this second appeal by the defendants.

9. At the time of admission, this Court though did not incline to admit the second appeal, would issue notice of motion. The appellants alsowere directed to deposit the arrears of maintenance of Rs.52,000/-. Afterservice of notice, the counsel for the respondents entered appearance. Whenthe matter came up before this Court, both the counsel would agree for finaldisposal of the main appeal. Accordingly, they were heard.

10. The learned senior counsel for the appellants before adverting to the merits of the appeal, would point out that the lower appellate Court,while reversing the judgment and decree passed by the trial Court, has notadverted to the findings given by the trial Court and without giving anyreason as to how the trial Court is wrong in giving such findings, the lowerappellate Court reversed the judgment by giving independent reasonings forarriving at the conclusion and decreed the suit and the same is wrong, in viewof the decisions in B. PARVATHY v. RAMAKRISHNA MISSION (2001(2) T.L.N.J.89MADRAS) and SANTHOSH HAZARI v. PURUTHOTTAM TIWARL (2001(1) Supreme 642).

11. On the basis of this submission, the learned senior counsel would request this Court to remand the matter to the lower appellate Court forrehearing the matter to give a finding as to whether the reasonings for thefindings given by the trial Court are valid or not.

12. On the other hand, the learned counsel for the respondents would submit that without remitting the matter for fresh hearing by the lowerappellate Court, this Court may consider the evidence adduced by both partiesin entirety and come to the conclusion. For this course, the senior counselfor the appellants would agree. Therefore, typed set containing the oral anddocumentary evidence adduced before the trial Court has been filed.

13. The senior counsel has raised the following substantial questionsof law in the memorandum:

1) Is not the first appellant proved non-access between the parties tothe marriage since December 1983 as contemplated under Section 11 2 of theIndian Evidence Act, 1872 by adducing Exs.A5 to A7, A9, A10 and Ex.B3documents besides adducing oral evidence D.W.2 to D.W.3 to prove that thesecond respondent was not born to him out of the wedlock?

2) Whether the lower appellate Court is right in awarding maintenance,when the first respondent herein has failed to plead or prove any of theingredients as contemplated under Sec.18(2) of the Hindu Adoptions andMaintenance Act, 1956 against the first appellant herein?

3) Whether the lower appellate Court erred in law and misdirecteditself in granting a decree for partition of the suit properties when thesecond respondent herein is proved not to be born out of the wedlock betweenthe first appellant and the first respondent herein?

4) Is not the Registered Partition Deed Ex.A8 dated 07-10-1987 enteredinto among the co-sharers is valid and binding upon the second respondent whenin law, even assuming without admitting that he is entitled to a share, he isentitled to half-share only in the properties allotted to the first appellantherein under the said partition?

14. Elaborating these questions of law, Mr.S.V.Jayaraman, the learnedsenior counsel appearing for the appellants would argue at length.

15. Mr.T. Murugamanickam, the learned counsel for the respondentsalso would point out the reasonings given in the judgment of the lowerappellate Court and refer to various portions of the evidence and contend thatthe decree passed in favour of the plaintiffs/respondents is perfectly valid.

16. I have carefully scrutinised the rival contentions urged oneither side and also gone through the entire records.

17. At the outset, I shall state that it is not correct to contend that the lower appellate Court has not adverted to findings given by the trialCourt, while reversing its judgment and on the other hand, the lower appellateCourt would refer to various findings and give reasons for coming to theconclusion that the plaintiffs are entitled to the reliefs sought for.

18. However, in view of the request made by the counsel for theappellants and the respondents, this Court has gone through the entireevidence available on record placed by both the parties. On a carefulperusal of the records, I am constrained to hold that the plaintiffs would beentitled to the decree for maintenance and partition for the followingreasons.

19. The marriage was held on 1.11.1982 between the first plaintiffand the first defendant. Admittedly, the marriage is still subsisting. It isthe case of the plaintiffs that till June 1988, the first plaintiff was livingwith the first defendant in the matrimonial home and thereafter, she came andjoined with her parents. The second plaintiff was born on 1.6.1988 as perEx.A1.

20. According to the defendants, she was living with her husband,first defendant only till December 1983 and thereafter, she deserted thehusband, the first defendant and joined the parents. It is also the case ofthe defendants that the first plaintiff had illicit intimacy with onePalanisamy who was working as a Teacher and out of the said intimacy, thesecond plaintiff was born in 1988. In short, it is pleaded by the defendantsthat from January 1984, there was no access between the first plaintiff andthe first defendant and so, the second plaintiff born on 1.6.1988 had not bornto the first defendant.

21. Once it is pleaded by the husband that the child was not born tohim and that there was no access between the husband and wife when thepregnancy was conceived, it is for the first defendant to prove the same.

22. On 9.10.1987, the first plaintiff filed the earlier suit inO.S.No.1087 of 1987 and in the plaint Ex.A9, she asserted that she was livingwith her husband, the first defendant in the matrimonial home and her right ofresidence in the matrimonial home should not be disturbed by the defendants.Though in the written statement filed in O.S. No.1087 of 1987, the firstdefendant stated that she was living with her parents for the past 51 months,the suit was not contested by the defendants. Ultimately, the decree waspassed in favour of the plaintiffs on 23.8.1989.

23. It is true that the said decree was sought to be set aside by thedefendants by filing the applications to condone the delay and to set asidethe ex parte decree. In the enquiry in those applications, the firstdefendant admitted that his wife and his son, the plaintiffs have left thehouse for living separately. Admittedly, those applications were ultimatelydismissed. There is no challenge against the said order. Consequently, thedecree has become final. Thus, it is clear from the plaint and decree Exs.A9and A12 respectively that the first plaintiff stayed in the matrimonial homeat least till the date of the suit i.e. 9.10.1987.

24. Apart from these documentary evidence, P.W.1 also would state inher evidence that she was living with the husband during the relevant periodand due to the wedlock, the son was born at the hospital on 1.6.1988. She hasalso marked Ex.A1, birth certificate which would show that the son was born on1.6.1988 and the father and mother of the child are Chikkaraj and Dhanalakshmii.e. the first defendant and the first plaintiff. These materials whichwould indicate that the first plaintiff was living with the husband, the firstdefendant till the second plaintiff was born cannot be rejected as there is novalid reason for the same.

25. As noted above, with reference to the absence of access andintimacy of the first plaintiff with the said Palanisamy, the same have to beestablished only by the defendants. But, these aspects have not beenestablished by the first defendant. In regard to intimacy with Palanisamy,the trial Court though dismissed the suit, held that the same was not true.The lower appellate Court on a careful scrutiny of the materials, found boththe aspects had not been proved by the defendants.

26. According to D.W.1, the first defendant in his evidence, thefirst plaintiff lived with the first defendant only for three monthssubsequent to the marriage and due to enmity between his father-in-law and thefirst defendant over the execution of a decree in the mortgage deed executedby the first defendant, the first plaintiff voluntarily left the matrimonialhome by deserting her husband and for the past eight years, she was livingwith one Palanisamy and as such, the second plaintiff was not born to him. Inthe cross-examination, he would state that he filed a petition for restitutionof conjugal rights and the same was dismissed. But, the records would showthat such an application was not filed, but he filed O.P.No.63 of 1987 for divorce and the same was dismissed for default on 12.12.1988. This is Ex.A2 .Prior to this, he sent a legal notice on 12.11.1987 to the first plaintiffseeking for consent for divorce. Ex.A5 is the notice. The reply Ex.A6 wassent by the first plaintiff on 17.11.1987. After receipt of the reply, on23.11.1987, the first defendant sent a rejoinder Ex.A7. In all thesedocuments, namely, the legal notice Ex.A5 sent on 12.11.1987 and the rejoinderEx.A7 sent by the first defendant on 23.11.1987 and in the petition inO.P.No.63 of 1987 seeking for divorce, he never whispered that she was havingillicit intimacy with Palanisamy and therefore, he sough divorce. Only for the first time, in the written statement filed in the present suit on4.2.1991, he mentioned that the child was born to the first plaintiff due toillicit intimacy with Palanisamy.

27. D.W.1, the first defendant would specifically state in the cross-examination of his evidence that he sent the notice through his LawyerAnandan asking her to come and join with him to lead the matrimonial life,however, she did not accede to come. D.W.3 would state that there was apanchayat and in the panchayat, P.W.1, the first plaintiff told panchayatdarsthat she would not agree for joining with her husband. It is specificallystated by both D.W.2 and D.W.3 that P.W.1 was having intimacy with onePalanisamy from 1985. There is no dispute that both D.Ws.2 and 3 are closelyrelated to D.W.1, the first defendant. The above evidence adduced by thedefendants is not on the basis of any documentary evidence. In fact, thedocumentary evidence disclose the defendants did not take that stand. Assuch, the oral evidence of defendants is against their own documents filed inthis case.

28. The first defendant in his evidence would state that even before he sent a notice Ex.A5 through Advocate Anandan, he knew that both the firstplaintiff and the said Palanisamy had illicit intimacy. If this statement ofD.Ws.1 to 3 is true, certainly, D.W.1 would have mentioned the same either inthe petition in O.P.No.63 of 1987 seeking for divorce or in the legal noticeEx.A5 and A7 sent on 12.11.1987 and 23.11.1987. Hence, it has to be held thatboth the absence of access and illicit intimacy with Palanisamy have not beenproved by the defendants.

29. According to the first defendant as D.W.1, the first plaintiffwas living separately for 14 years. There is no dispute in the fact that theplaintiff filed a suit on 9.10.1987 in O.S.No.1087 of 1987 contending that shehas been living with her husband in the matrimonial home and as such, herright of residence should not be disturbed and the suit has been decreed exparte in favour of the plaintiff.

30. Prior to the filing of the suit, i.e. on 9.10.1987, the first

defendant did not make any effort to get back his wife to the matrimonialhome. In other words, prior to 9.10.1987, no notice was sent by the firstdefendant to the first plaintiff asking for joining him. Though he stated inhis evidence as well as in the petition before Court for restitution ofconjugal rights that he sent a notice, such a statement has not been proved,as factually the said statement is untrue.

31. In the evidence, the first defendant would state that she was living separately for 14 years. In Ex.A5, the notice issued on 12.11.19 87 bythe first defendant, it is stated that she was living separately for 46months. As such, the statement that she was living separately for 14 years,even though the said oral evidence was adduced by D.W.1 in 1996, is notcorrect. Therefore, there is no consistent evidence adduced by the defendantsin regard to the absence of access for 14 years.

32. Though the suit was filed on 9.10.1987 stating that she is in thematrimonial home, in the legal notice Ex.A5 issued by the first defendant on12.11.1987, he did not mention about the intimacy with third party. Only on24.11.1987, the first defendant filed a petition in O.P.No.63 of 1987 seekingfor divorce without mentioning about the intimacy with third party and thesame was also dismissed on 12.12.198 8 and when the application was filed bythe first defendant to restore the same, the said petition also was dismissedon 8.8.1991.

33. The trial Court having held that the illicit intimacy withPalanisamy was not proved, ought to have considered the decree passed inO.S.No.1087 of 1987 in favour of the plaintiff giving the right of residenceto the plaintiff to stay in the matrimonial home along with the husband andheld that the absence of access also was not established by the defendants.On the other hand, the lower appellate Court has dealt with each and everyaspect of the matter and rendered a correct factual finding that the child,the second plaintiff was born only to the first defendant through the firstplaintiff and as such, the second plaintiff is entitled to the share asdecreed by the lower appellate Court.

34. In view of the above discussion, the second appeal is dismissedas there is no sufficient material to substantiate the substantial questionsof law on the basis of which the arguments were placed by the senior counselfor the appellants. No costs.

21-11-2002Index: YesInternet:Yesmam

To

1) The II Additional District Judge, Erode.

2) The Subordinate Judge, Gobichettipalayam (with records).

3) The V.R. Section, High Court, Madras.