AS/1672/1993 of Nalluri Audiseshaiah Vs Nalluri Koteswaramma on 31 December 2010

JUDGMENT:-

The first defendant in O.S.No.124 of 1984 on the file of the court ofSenior Civil Judge, Ongole is the appellant herein. The suit was filed bythe wife of the appellant who is the first plaintiff for maintenance and alsofor the marriage expenses of the second plaintiff. The allegations in theplaint goes to show that the marriage was performed 25 years back andduring the lawful wedlock the second plaintiff was born. The plaintallegations goes to show that marriage was performed against the will ofthe first defendant though the first plaintiff is none other than the sister’sdaughter. The first defendant used to ill-treat and harass the first plaintiffand thereafter he deserted her and did not provide any maintenance. The first defendant has got A & B share itself which are valuable andincome fetched. When the plaintiff gave a notice for maintenance thedefendant gave a reply. He sold some of the properties which are nottrue and valid. Therefore, the plaintiff filed a suit for maintenance whichcharge over the property.

The first defendant filed a written statement making generalallegations of the conduct of the first plaintiff and the allegations that herefused to maintain the first plaintiff and did not provide maintenance andthat he deserved the first plaintiff is false. The first defendant expressedthe willingness to receive the plaintiffs and maintain them. He claims tohave done business and suffered loses and sold the property to thedefendant Nos.3 and 4 for valuable consideration.

On the basis of the above pleadings the following issues have beenframed.

1. Whether the first plaintiff is entitled for separate maintenance andif so at what rate?if so at what rate?

2. Whether the first plaintiff is entitled for separate residence ofRs.10,000/- in the alternative?Rs.10,000/- in the alternative?

3. Whether first plaintiff is entitled for Rs.10,000/- towards marriageexpenses of second plaintiff?expenses of second plaintiff?

4. Whether first plaintiff is entitled for charge over A and B Scheduleproperties for the claim in the suit?properties for the claim in the suit?

-POINTS:

On behalf of the plaintiffs PWs.1 to 3 were examined and markedExs.A-1 to A-5. On behalf of the defendant first defendant was examined as DW.1 and marked Exs.B-1 to B-5.

After considering the evidence on record, the learned SubordinateJudge granted maintenance for Rs.250/- per month to the first plaintiffand also a charge over item No.4 of the plaint “A” schedule towards herseparate residence, in the alternative she is entitled to a sum of Rs.60/-per month. First defendant is further directed to pay Rs.10,000/- towardsmarriage expenses of the second plaintiff and created a charge over “A”schedule property. The claim for past maintenance was dismissed.Aggrieved by the said judgment, the first defendant filed the appealchallenging the grant of maintenance to the first plaintiff.

The first plaintiff has also filed a Cross Objections (SR) No.50018of 1993 as an indigent person and she was permitted to prosecute thesame. She questioned the refusal of the lower court in granting pastmaintenance and also maintenance at Rs.250/- for future maintenanceas being very low.

The points that arise for consideration are:-

(1) Whether granting of maintenance by the lower court is legally valid and sustainable? legally valid and sustainable?

(2) Whether the plaintiff is entitled for further enhancementof any maintenance?of any maintenance?

(3) Whether the judgment and decree passed by the learnedSenior Civil Judge is legal and sustainable?Senior Civil Judge is legal and sustainable?

(4) To what relief?

-POINT:

The suit is of the year 1984 and the decree was passed in 1992. Itis only a claim for maintenance of Rs.250/- by the lower court. The factthat the first plaintiff was married to the first defendant and that thesecond plaintiff was born in lawful wedlock is not disputed. The fact thatboth of them are living separately is also not in dispute. The fact that thefirst defendant has not provided any maintenance to the first plaintiff isalso not in dispute. The claim of the first defendant that he is willing toreceive the first plaintiff and maintain her is hallow since he did not fileany application for restitution of conjugal rights. The lower court hasconsidered all these aspects and also considered the claim of the plaintiffs. The first defendant cannot therefore contend that there is noliability to pay the maintenance. In fact by the change of present law hecannot even take the plea of no liability. Therefore, I have no hesitationin holding that the claim of the first defendant questioning themaintenance is not valid and bona fide and I do not find any reasons tointerfere with the judgment of the lower court. Insofar as theenhancement of the claim by the first plaintiff and past means isconcerned, I do not find that the plaintiff has got every right to seek forfurther enhancement or variation of maintenance and she can alsoapproach the criminal court for payment of the reasonable maintenanceas provided under Section 125 Cr.P.C which is a better and effectiveremedy and I do not think that at this juncture, after long lapse of time,this court will be justified in interfering with the maintenance claimdetermined in 1984 by the lower court. Therefore, I do not find any meritsin the appeal as well as cross objections.

Therefore the Appeal Suit as well as Cross Objections aredismissed. No order as to costs.

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N.R.L.NAGESWARA RAO,J

31-12-2010TSNR