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Madras High Court
PADMANABHAN
Raghavan - Appellant
Versus
Nagammal - Respondent
Decided On : 04/26/1978
HINDU LAW - MAINTENANCE - WIFE'S RIGHT TO MAINTENANCE - CHARGE ON HUSBAND'S PROPERTY - S.39 OF THE TRANSFER OF PROPERTY ACT, 1882 - APPLICABILITY - HUSBAND'S PERSONAL OBLIGATION TO MAINTAIN WIFE - WHETHER AFFECTS WIFE'S RIGHT TO CHARGE ON HUSBAND'S PROPERTY - WIFE'S RIGHT TO MAINTENANCE AS A LEGAL CHARGE ON HUSBAND'S PROPERTY - WHETHER WIFE ENTITLED TO ENFORCE RIGHT AGAINST ALIENEE WITH NOTICE OF CLAIM - WIFE'S RIGHT TO MAINTENANCE AS A SUBORDINATE INTEREST IN HUSBAND'S PROPERTY - HUSBAND'S ALIENATION OF PROPERTY TO DEFEAT WIFE'S RIGHT TO MAINTENANCE - EFFECT - WIFE'S RIGHT TO CHARGE ON PROPERTY GIFTED BY HUSBAND TO SECOND WIFE - WHETHER AFFECTED BY DECREE FOR RESTITUTION OF CONJUGAL RIGHTS - WIFE'S RIGHT TO ENHANCED MAINTENANCE - WHETHER AFFECTED BY PRIOR DECREE FOR MAINTENANCE - WIFE'S RIGHT TO MAINTENANCE AFTER REMARRIAGE.
Fact of the Case:
The plaintiffs, a wife and her daughter, filed a suit against the husband and his second wife for maintenance, past and future, and for recovery of marriage expenses of the daughter. The husband had ceased to look after the plaintiffs and had settled all his properties in the name of the second wife. The plaintiffs claimed maintenance for the wife at Rs. 100/- per month, a sum of Rs. 2880/- towards past maintenance, a sum of Rs. 600/- for residence and clothing for the past three years, Rs. 50/- per month for residence and clothing for the future period. A charge was also claimed over the plaint A Schedule property. The prayer in respect of the daughter was future maintenance at the rate of Rs. 65/-per month, for recovery of a sum of Rs. 2340/- towards past maintenance and a sum of Rupees 5,000/- towards marriage expenses. For these amounts also a charge was claimed over the plaint A Schedule property.
Finding of the Court:
The trial court held that the wife was entitled to maintenance at the rate of Rs. 50/- per month, past maintenance for three years at the rate of Rs. 50/- per month, and a charge over the plaint A Schedule properties for the maintenance amount. The daughter was held entitled to a sum of Rs. 1000/- for marriage expenses and maintenance at the rate of Rs. 35/- per month. The defendants appealed against the decree.
Issues: 1. Whether a wife is entitled to a charge on her husband's property for her maintenance and whether the same can be enforced against the property gifted to the second wife by the husband under S.28 of the Hindu Adoptions and Maintenance Act, 1956? 2. Whether a wife is entitled to a charge on her husband's property for her maintenance under S.39 of the Transfer of Property Act, 1882? 3. Whether a wife's right to maintenance is affected by a decree for restitution of conjugal rights? 4. Whether a second suit for maintenance is maintainable after a prior decree for maintenance? 5. Whether a wife is entitled to maintenance after remarriage?
Ratio Decidendi: 1. A wife is entitled to a charge on her husband's property for her maintenance and the same can be enforced against the property gifted to the second wife by the husband under S.28 of the Hindu Adoptions and Maintenance Act, 1956. 2. A wife is entitled to a charge on her husband's property for her maintenance under S.39 of the Transfer of Property Act, 1882. 3. A wife's right to maintenance is not affected by a decree for restitution of conjugal rights. 4. A second suit for maintenance is maintainable after a prior decree for maintenance, if the subsequent suit is for enhanced maintenance or for other reliefs such as marriage expenses. 5. A wife is not entitled to maintenance after remarriage.
Final Decision: The appeal was dismissed with costs, subject to the modification that the second plaintiff would be entitled to maintenance only till 4-7-1974, the date of her marriage with Arumugam.
JUDGEMENT :- The defendants in O.S. No. 3785 of 1970 on the file of the City Civil Court at Madras are the appellants. The plaintiffs filed the suit in forma pauperis for recovery of maintenance past and future and for the recovery of a sum of Rs. 5000/- for the marriage expenses of the second plaintiff in the following circumstances. The first defendant (first appellant is the husband of the first plaintiff-first respondent). The marriage took place in 1948 at Madras. The second plaintiff Lakshmi is the daughter born to them. In 1951 the first defendant began to illtreat the first plaintiff and ceased to look after her and the second plaintiff. The plaintiffs were therefore compelled to file O.S. No. 1829 of 1958 on the file of the City Civil Court for maintenance. That ended in a compromise, under which the second plaintiff was awarded future maintenance at the rate of Rs. 35/- per month and a sum of Rs. 400/- for past maintenance. The claim of the first plaintiff for maintenance was not pressed. Thereafter, the first defendant filed O.P. No. 205 of 1961 for restitution of conjugal rights against the first plaintiff. Though the petition was dismissed by the trial court, this court ordered restitution in C.M.A. No. 196 of 1963. Subsequent to the disposal of C.M.A. No. 196 of 1963 by this Court, the first defendant has been keeping the second defendant as his concubine in his house and did not bother to take back the first plaintiff to live with him. He also committed default in the payment of monthly maintenance to the second plaintiff. He had settled all his properties in the name of the second defendant his concubine. The plaintiffs therefore filed the suit in forma pauperis claiming maintenance for the first plaintiff at Rs. 100/- per month, a sum of Rs. 2880/- towards past maintenance, a sum of Rs. 600/- for residence and clothing for the past three years, Rs. 50/- per month for residence and clothing for the future period. A charge is also claimed over the plaint A Sch. property. The prayer in respect of the second plaintiff is future maintenance at the rate of Rs. 65/-per month, for recovery of a sum of Rs. 2340/- towards past maintenance and a sum of Rupees 5,000/- towards marriage expenses. For these amounts also a charge is claimed over the plaint A Schedule property.
2. The first defendant filed a written statement which was adopted by the second defendant. The first defendant contended that the suit was bad for misjoinder of causes of action. He further pleaded that the claim of the first plaintiff for maintenance was not sustainable on account of the decree for restitution of conjugal rights passed in C.M.A. No. 196 of 1963 on the file of this Court. It was also pleaded that the second plaintiff had married one Arumugam and was therefore not entitled to get Rs. 5000/- for marriage expenses. The second plaintiff's right for enhanced maintenance was also denied. The first defendant further stated that the plaintiffs are not entitled to get a charge over A Schedule properies as they had been settled in favour of the second defendant for proper and valid consideration. The settlement deed itself was executed since the second defendant undertook to discharge the mortgage which subsisted on the suit properties.
3. The trial Court raised the necessary issues for consideration. The trial Court held that the first plaintiff was entitled to claim maintenance and it fixed the quantum of maintenance at the rate of Rs. 50/- per month. It disallowed the claim of the first plaintiff for Rupees 600/- for residence and clothing for the past three years and Rs. 50/- per month for residence and clothing for the future period. It however held that the first plaintiff would be entitled to past maintenance for three years at the rate of Rs. 50/- per month.
4. As regards the second plaintiff the learned Judge held that she would be entitled to a sum of Rs. 1000/- for marriage expenses. He also found that the second plaintiff would
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