IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21/01/2022

CORAM :

THE HON'BLE MR.JUSTICE M.GOVINDARAJ

S.A.NO.63 OF 2014

Gunasekaran

...Appellant / Appellant /

Defendant

Vs.

G.Kavitha

...Respondent / Respondent /

Plaintiff

PRAYER : Second Appeal filed under Section 100 of the Civil

Procedure Code against the judgment and decree dated 16.08.2013

passed in A.S.No.16 of 2012 on the file of Subordinate Judge,

Poonamallee, partly modifying the judgment and decree dated

31.10.2011 passed in O.S.No.292 of 2003 on the file of

Additional District Munsif, Poonamallee.

For Appellant

:

Mr.R.Bharath Kumar

For Respondent

:

Mr.G.Dilip Kumar

J U D G M E N T

Unsuccessful defendant is the appellant before this Court.

2.The plaintiff filed a Suit for recovery of maintenance

from June 2003 and to create charge over the Suit property for

the maintenance payable to the plaintiff by the defendant.

According to the plaintiff, she married the appellant /

defendant on 25.04.1993 as per Hindu Rites and Customs and she

was given Sridhana of 10 sovereigns of gold jewels and two

sovereigns of gold chain and ring to the defendant. After

marriage, the defendant quit the job taking substantial amount.

He ill treated the plaintiff without any reasons. She begot two

male children and lived in an un-hygienic and sub-human

environment. Whenever she made any request, she will be treated

harshly and sent away to her parents house. Unable to bear the

physical and mental cruelty, she used to go to her parents house

and return home after the defendant's anger recedes. Unable to

bear the physical cruelty, she is living away from the defendant

and living with her parents. Her parents and brothers supported

her and her children and provided them food, shelter and

https://hcservices.ecourts.gov.in/hcservices/

clothing. They are finding it difficult to provide financial

assistance to the plaintiff and her children and therefore, she

claimed Rs.1,250/- per month to her and another sum of

Rs.1,500/- per month to maintain her two children. She

restricted her prayer in the Suit for future maintenance alone.

3.In the written statement, the defendant denied the

averments of Sridhanas and the expenditure made by the

plaintiff's parents. The plaintiff insisted to get partition of

the property on the ill-advice of the plaintiff's mother and

deserted him and living separately. The plaintiff and her mother

always interested in lodging complaints against the defendant.

The allegations of torture and un-hygienic and sub-human

environment are all false. He never inflicted any physical

injury and he was maintaining the plaintiff and his children

when they lived in the same house. In fact, the matter was

compromised between themselves and the Suit was dismissed for

default. Thereafter, the plaintiff lived with the defendant in

the same house between 2004 and 2007. But, it seems that the

Suit was restored and got decreed and the plaintiff filed an

execution petition. During the stay of the plaintiff, he only

maintained the children and paid their school fees and other

household expenses. The plaintiff is employed and getting a good

salary of Rs.5,000/- per month. Whereas, the defendant is

unemployed and therefore, she is not entitled to any

maintenance.

4.The Trial Court, after framing appropriate issues, decreed

the Suit and granted maintenance @ Rs.1250/- per month from June

2003 and created charge over the property. On appeal, the First

Appellate Court modified the decree by excluding maintenance for

the period from 2004-2007 and confirmed the decree and judgment

on all other aspects. Aggrieved over the same, the defendant has

preferred the above Second Appeal.

5.This Court admitted the Second Appeal on 28.02.2019 on the

following substantial questions of law:-

(i) Whether