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Orissa High Court
B.K.PATRA
Kashinath Sahu - Appellant
Versus
Devi - Respondent
First Appeal No. 79 of 1964
Decided On : 02/25/1971
MAINTENANCE - HINDU WOMEN'S RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT, 1946 - SECTION 2 - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 18(2)(b) - CRUELTY - INTERPRETATION - WIFE ENTITLED TO SEPARATE MAINTENANCE - CIRCUMSTANCES CONSTITUTING CRUELTY - FACTORS TO BE CONSIDERED IN DETERMINING QUANTUM OF MAINTENANCE.
Fact of the Case:
The appellant (husband) appealed against the judgment and decree of the Subordinate Judge, Berhampur, granting maintenance to the respondent (wife) at Rs. 65/- per month and creating a charge therefor on the plaint 'A' schedule properties. The wife alleged that she was neglected, ill-treated, and harassed by the appellant and his family members, causing her to apprehend harm and injury if she continued to live with him.
Finding of the Court:
The court held that the wife had established that she was treated with cruelty by the appellant and his family members, causing reasonable apprehension of harm and injury if she continued to live with him. The court found that the appellant's conduct, including neglect, ill-treatment, and harassment, amounted to legal cruelty.
Issues: 1. Whether the wife was treated with cruelty by the appellant and his family members? 2. Whether the treatment caused reasonable apprehension of harm and injury to the wife if she continued to live with the appellant? 3. Whether the wife was entitled to separate maintenance?
Ratio Decidendi: 1. Cruelty need not always be physical but can include conduct that causes disgrace, annoyance, and indignity to the wife. 2. The court considered the circumstances of the case, including the physical and mental condition of the parties, their character, and social status, in determining what constituted cruelty. 3. The court relied on letters written by the appellant and the wife, as well as the testimony of the wife, to corroborate the allegations of cruelty.
Final Decision: The court affirmed the judgment and decree of the Subordinate Judge, with a reduction in the amount of maintenance from Rs. 65/- to Rs. 50/- per month. The appeal was dismissed with costs.
JUDGMENT:- This is an appeal against the judgment and decree passed by the Subordinate Judge, Berhampur granting to respondent No. 1 maintenance at Rs. 65/- per month against her husband the appellant and creating a charge therefor on the plaint 'A' schedule properties. The appellant and respondent No. 1 were married on 11-3-1953. In the year 1955, she had an attack of filaria while she was residing in the house of her father-in-law at Berhampur. But no steps were taken for her treatment either by her father-in-law or mother-in-law and when her husband wanted to call a doctor, he was prevented from doing so by his mother. Thereafter, much against her will she was sent back to her father's house where she remained for a period of three years during which time nobody from her husband's house made any inquiries
about her health nor did they provide any funds for her treatment. On the death of her father-in-law in the year 1958, although nobody from her husband's family came to take her from her father's house at Itamati in Puri District, she with her father voluntarily came to Berhampur to attend the father-in-law's obsequies.
A few days thereafter, her mother-in-law did not want her to stay in the house and asked her to go back to her father's house, but on refusal, her husband against her wishes took her to her father's house and left her there. Sometime in Falgun, 1960, she was brought back to her husband's house and was subjected to harassment and physical torture from all the members of the family and was not allowed proper food and clothing and was forced to sleep in a room in the background of the house. Even the servants of the family misbehaved with her and insulted her at the instance of her mother-in-law. As the situation became unbearable she wrote a letter to her father who came and took her away from Berhampur. Thereafter she commenced the suit against her husband (Deft. 1), his brothers (Ds. 2 to 4) and his mother (D. 5), claiming maintenance at Rs. 100/- per month.
2. In the written statement filed by the appellant (D. 1), he denied the plaintiff's allegation that she was ever neglected or ill-treated in her father-in-law's house and contended that there was no cause of action for the plaintiff to claim maintenance. He also disputed the quantum of maintenance stating that he has no share in the family business and that he is maintaining himself by working as a driver on a monthly salary of Rs. 90/-. The other defendants, in addition to denying the plaint allegations regarding cruelty and supporting the case of defendant No. 1 that he had no share in the family business, disputed the plaintiff's right in the event of her getting a decree for maintenance to charge the same on family properties.
3. On a consideration of the oral and documentary evidence on record, the learned Subordinate Judge came to the conclusion that the plaintiff had been neglected, ill-treated and harassed by the defendants including defendant No. 1: that the amount of ill-treatment, harassment and neglect has been such that it was reasonable on the part of the plaintiff to apprehend that it would be harmful and injurious to her to live with defendant No. 1. He, therefore, held that she was entitled to get maintenance from her husband. Regarding the quantum of maintenance, he disbelieved the defendant No. 1's case that he had no share in the joint family business; and assessing the profits of the business to be Rupees 12000/- per annum the learned Judge allowed maintenance at Rs. 65/- per month and made it a charge on the plaint 'A' schedule properties. Hence this appeal by defendant No. 1.
4. Prior to the passing of the Hindu Women's Right to Separate Residence and Maintenance Act. 1946, it was held in several cases in Courts that a wife, though normally bound to remain under the roof and protection of the husband, could claim separate residence and maintenance, if she established that, by reason of his misconduct or by his refusal to maintain her
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