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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MR. JUSTICE M. VENUGOPAL
T. Subramaniam
Versus
Santhamani & Another
Appeal Suit No. 816 of 2005
Date of Judgment : 18-03-2010
Maintenance - Family Law - Order 17, Rule 2 CPC - Summary
Fact of the Case:
The case involved a dispute between a husband and wife, with the wife seeking maintenance for herself and their child. The wife alleged cruelty and demanded maintenance, while the husband denied the allegations and claimed that the wife left on her own accord.
Finding of the Court:
The trial court found that the wife had reasonable cause for separate living and ordered maintenance for the wife and child. The appellate court, however, found that the trial court erred in proceeding with the matter on merits after the wife's non-appearance for further cross-examination.
Issues: The main issues were whether the trial court was justified in proceeding with the matter on merits despite the wife's non-appearance for cross-examination and whether the trial court was right in referring to the averments in another petition and awarding maintenance.
Ratio Decidendi: The appellate court held that the trial court erred in proceeding with the matter on merits after eschewing the wife's evidence and referring to averments in another petition. It emphasized the importance of following procedural rules and providing opportunities for both parties to adduce evidence.
Final Decision: The appellate court set aside the judgment and decree of the trial court, remitted the matter back to the trial court, and directed the trial court to afford sufficient opportunity to both parties to adduce further evidence and proceed with the matter in accordance with the law.
R. BANUMATHI, J.
1. Aggrieved by granting maintenance of Rs.500/- per month to each of the Plaintiff from the date of Plaint till the life time of 1st Plaintiff and till attaining majority of 2nd Plaintiff or further orders, husband filed this appeal. For convenience, wife Santhamani is referred as 1st Plaintiff and husband Subramaniam is referred as Defendant in this Judgment.
2. Case of Plaintiffs is that 1st Plaintiff and Defendant got married in the year 1991 and out of their wedlock, 2nd Plaintiff was born on 212. 1999. While living at Kumaran Nagar, Defendant began to lead a wayward life and often quarreled with the 1st Plaintiff by demanding 20 sovereign of gold and Rs.10,000/- cash. Defendant had also demanded name transfer of the house site purchased in the name of 1st Plaintiff by her father Muthusamy Chettiar. Case of Plaintiffs is that Defendant became very hostile not only towards 1st Plaintiff but also towards his son 2nd Plaintiff and treated them in a very cruel manner not even providing proper food and milk to 2nd Plaintiff. According to Plaintiffs, in order to safeguard the life of Plaintiffs during the year 1992, 1st Plaintiffs sister took both the Plaintiffs to their parental home at Varadharajapuram for time being. Afterwards, the Defendant never visited the Plaintiffs or tried to bring them back to Pollachi for peaceful living. From that date onwards the Defendant deserved the Plaintiffs and Plaintiffs are living separately. It is averred that the efforts taken by the 1st Plaintiff to join with the Defendant ended vein. Further case of Plaintiffs is that 1st Plaintiff had given Police complaint to All Women Police Station, Pollachi for peaceful living and the Police enquired the matter. From the enquiry, it reveal that Defendant has got married with his distant relative who is residing at Kerala as second wife. Now the 1st Plaintiff is residing with her parents at Varatharajapuram with great difficulty. In order to meet out the educational expenses to 2nd Plaintiff and necessities to Plaintiffs, they required minimum Rs.2000/- per month. Case of Plaintiffs is that Defendant is working as Office Assistant in Sub-Registrars Office at Annamalai and earning Rs.3,500/- per month. Apart from his salary, Defendant also receiving rent of Rs.3000/-per month from the house rented to third parties. Plaintiffs issued legal notice on 011. 1997 and by setting out false allegation, Defendant issued reply notice on 111. 1997.
3. Resisting the suit, Defendant filed written statement contending that he never demanded any money from the 1st Plaintiff alleged in the Plaint and that the 1st Plaintiff who went to her parents house on her own and did not return back to the matrimonial home. According to the Defendant, 1st Plaintiff never cared the aged mother of the Defendant. Case of Defendant is that inspite of efforts and panchayat, 1st Plaintiff did not return back to the matrimonial home. Hence, Defendant issued legal notice on 26. 1993 calling upon the 1st Plaintiff to come and live with the Defendant and 1st Plaintiff replied the said notice on 02.07.2003 and Defendant sent his rejoinder also. Further case of Defendant is that since the 1st Plaintiff refused to live with the Defendant, Defendant filed HMOP.No.121/1995 for restitution of conjugal rights before Sub-Court, Udumalaipet and after the receipt of notice in the said HMOP, 1st Plaintiff appeared in person before Sub-Court, Udumalaipet and endorsed that she is willing to join with the Defendant. Inspite of the decree, 1st Plaintiff never returned back to matrimonial home. Thereafter, Defendant issued notice to the 1st Plaintiff on 14. 1996, 15. 1996, 07. 1996, 17. 1996, 012. 1996, 10. 1997, 111. 1997 and 11. 1998 calling upon 1st Plaintiff to come and live with Defendant. Case of Defendant is the since 2nd Plaintiff completed 6 years of age, Defendant filed HMGOP No.52/98 on the file of District Court, Coimbatore seeking custody of 2nd Defendant and a
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