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Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
Bodanapu Khadaraiah - Appellant
Versus
Bodanapu Siddamma - Respondent
A.S.No. 911/82
Decided On : 09-02-94
Advocates Appeared :
Miss. Nanda,Mr. S.V. Sundar Rajan
Held : The fact that defendant No.1 had access to the plaintiff stands proved as it is not the case of the 1st defendant that he was prevented from access and thereby the legitimacy of defendant No.2 as the son of defendant No.1 through the plaintiff should be conclusively taken as established by virtue of the mandatory provision of Sec. 112 of Evidence Act. The law appears to be that the burden of showing that the parties to the marriage have no access to each other is on the person who challenges the legitimacy of a child. Defendant No.1 has miserably failed to discharge that burden to any extent much less to the extent of shifting the burden on to the plaintiff. The law appears to be settled that in the absence of evidence of non-access, the child must be deemed to be legitimate even though the wife was living apart and leading an unchaste life.
Although, the legitimacy of defendant No.2 as between plaintiff and defendant No.2 was not in doubt, defendant No.1 unnecessarily raised such an allegation thereby attributing unchastity to the plaintiff to the extent of exposing her to the insinuation of adultery. In such a situation, the law appears to be that attribution of unchastity or adultery to a wife without justification or proof, amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the question of claim, of maintenance. Unjustifiably attributing unchastity or adultery to a wife by a husband amounts to cruelty entitling the wife to live separately without forfeiting her right to claim separate maintenance. Therefore, the plaintiff was entitled to seek separate maintenance from defendant No.1 on the ground of establishing legal cruelty by him towards her.
( 1 ) THIS is a defendant s appeal. Defendant No. 1 has challenged the judgment and decree passed by the learned Sub Judge, Cuddapah in O. S. No. 12/1979 dated 6-2-1982 decreeing the suit in favour of the plaintiff who is respondent No. 1 herein. The appeal is resisted by respondent No. 1. The reference to parties as plaintiff and defendants as they were styled in the trial Court would be convenient. It will be done accordingly.
( 2 ) THE plaintiff filed the suit for recovery of maintenance at the rate of Rs. 500/- per mensem from defendant No. 1, for arrears of maintenance at Rs. 18,000/- for three years prior to the suit against him, for a charge of 1/4th share of the 1st defendant in plaint-A schedule properties and for such other reliefs as the Court deemed fit in the circumstances of the case. The properties described in plaint-A schedule are as many as 25 agricultural lands situate in Dalavayipalli village of Cuddapah district. The items mentioned in plaint-B schedule are movable properties comprising gold, silver and iron safe and utensils. The items mentioned in plaint-C schedule are sarees etc. Defendant No. 1 resisted the suit on various grounds but defendant No. 2 did not resist the suit.
( 3 ) THE plaintiff is the first wife of defendant No. 1. She married him about 30 years prior to the suit. Defendant No. 2 is said to be the son of the plaintiff born through defendant No. 1. The plaintiff pleaded that within a short time after she joined defendant No. 1 due to the marriage wedlock, he developed hatred and started ill-treating her. He also married a second wife about 25 years prior to the date of the suit and took back all the jewellary from her and gave them to the second wife. Due to instigation of the second defendant (sic. wife) also, it is pleaded that the 1st defendant used to ill treat the plaintiff. It is further pleaded that the mother of defendant No. 1 and the second wife of the defendant also ill-treated the plaintiff. The plaintiff had alleged that the 1st defendant started complaining against the 2nd defendant to the police on various reasons unsuccessfully. Ultimately it appears that the plaintiff and the 2nd defendant who were driven out of the house by the 1st defendant, lived at Anantampalli which is at a distance of about 1 miles away from the village Dalavayipalle and later on returned to the village. Therefore, the plaintiff has pleaded that the defendant No. 1 has neglected to maintain her and her son because of his cruel and improper conduct. It is further pleaded that the 1st defendant owns immovable and movable properties as described in the Plaint 1, B and C schedules and hisannual income is about Rs. 20,000/- to Rs. 30,000/- and that he also served as an Upa Sarpanch of Dalavayipalli Panchayat and that he is capable of maintaining the plaintiff and that she is maintaining herself with the assistance of defendant No. 2 Who is come of age. As a whole, she wanted a decree as prayed for. The plaintiff has pleaded that she and defendant No. 1 belongs to Doodekula community and are governed by Hindu Law.
( 4 ) DEFENDANT No. 1 denied the plaint allegations and in particular the alleged cruel treatment by him towards the plaintiff, his driving her out from the house and the village and the plaintiff maintaining herself with the assistance of defendant No. 2. He disowned defendant No. 2 as his son born to the plaintiff. Plaintiff and defendant No. 2 belong to Hindu Community whereas the 1st defendant is govered by Muslim Law. Defendant No. 1 pleaded that he has got five children born to him through the second wife-Peeramma and that he does not own properties and that therefore, he cannot afford to provide separate maintenance to the plaintiff at the rate of Rs. 500/- per mensem. However, he contended that the plaintiff herself deserted him after few months of the marriage and entered into a divine order and developed her own circle of friends and that therefore, the suit is n
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