Decided on July 08,1971


Referred Judgements :-


Cited Judgements :-



- (1.)This Second Appeal is filed by the husband against confirming judgment and decree of the Additional District Judge Visakhapatnam in A. S. No. 53 of 1968, decreeing the suit filed by his wife for past and future maintenance, and awarding a sum of R. 40/- per month and creating a charge for the said sum on the plaint scheduled property. The wifes claim for maintenance is based on the allegations of ill-treatment, cruelty and abandonment. It was also alleged that the defendant was living with another woman. She had also claimed the return of the jewels said to have been taken by the husband, The defendants plea was that they both belonged to different castes, the wife belonged to the Yatha" caste while the husband belonged to Periki community. and that he never married the plaintiff. It was alleged that the plaintiff in or about 1948 and that the defendant kept her as his concubine. He also denied having ever ill-treated her and as having beaten or driven her out of the house. He underwent an operation for hernia and thereafter, the plaintiff began to lead freely a life of a debauchee. She left the defendants house on 1-5-1965 taking with her a sum of Rs. 480.00 and jewels given to her by the defendant. After leaving the house of her own accord, the plaintiff continued to lead an unchaste life. For all these reasons, he refused to maintain her. He also disputed the quantum of maintenance payable to her as excessive. He prayed for the dismissal of the suit. Both the Courts below have held the marriage between the plaintiff and the defendant proved.
(2.)In do not see any reason to disagree with the concurrent findings of the Courts below. The contention of Mr. Y. G. Krishnamurthy, the learned Counsel for the appellant, that there could not have been any marriage between members of Periki and Yatha communities, does not appeal to me. There is no legal bar to such a marriage. Admittedly, they have been living together as husband and wife for a very long time. The mere circumstances that they belong to different communities is not sufficient to hold that there was no marriage at all. This finding is, therefore, confirmed. Even on the other question whether there was ill-treatment, cruelty and abandonment on the part of the husband justifying award of maintenance. the Lower Appellate Court on an appreciation of evidence, has come to the conclusion against the defendant. It is vehemently contended by the learned Counsel for the appellant that all that is established on evidence is that the appellant had once beaten the plaintiff and that by itself is not sufficient to hold that he was guilty of such cruelty as would create an apprehension in the mind of the plaintiff so as to cause a reasonable apprehension in hr that it would be harmful or injurious to live with her husband and entitle her to live separately, and demand maintenance. That again is a question of fact. In order to cause a reasonable apprehension in mind of the wife that it would be harmful or injurious to her to live with her husband, it is not necessary to prove that the husband has beaten her more than once. The ill-treatment or treating the wife with cruelty, does not lie merely in beating her. A long course of ill-treatment would ultimately result in beating. The wife may put up even with the beating but in certain circumstances, after a long course of ill-treatment, if the wife is beaten, that may create a reasonable apprehension in certain circumstances that it would be harmful or injurious for her to live with her husband. That will depend on the facts and circumstances of reach case. No circumstances have been pointed out to me by the learned Counsel for the appellant to hold that the finding of the Lower Appellate Court, in this behalf, is perverse as to warrant interference in second appeal.
(3.)It is also significant to note that in the written statement, the defendant made an allegation of unchastity. In fact, he alleged that his wife was freely leading a life of a debauchee. He also adduced evidence of D. Ws. 5 and 6 to substantiate his allegation. But the learned Additional District Judge. after consideration of the evidence on record, came to the conclusion that the allegation of unchastity is unfounded. It has been held by a Bench of this Court, to which I was also a party , in A. A. O. No. 314 of 1969, judgment, D/- 14-12-1970. (Andh Pra) that a petition under Section 28 of the Hindu Marriage Act for restitution of conjugal rights, making an unfounded allegation maliciously amounts to cruelty. It was further held:
"Nothing can be more harmful to a wife having any self-respect or decency to live with a husband who maliciously and falsely imputes unchastity or theft to her. the law does not expect the wife to wait till such time as the mental agony results in bodily or mental injury which can be provide as a fact."
Of course, the plaintiff herself did not base her claim for maintenance on the ground that the husband had treated her with cruelty by making an unfounded allegation of unchastity as to cause a reasonable apprehension in her mind, that it would be harmful ad injurious to live with her husband. But the Court is surely entitled to take into consideration the subsequent events in molding the relief. The allegation of unchastity was made even at the reply notice. Ex. A-3 dated 19-5-1965, though it was not made as blatantly therein, it was made in quite certain tress in the written statement of the defendant appellant and was sought to be established by the evidence of D. Ws. 5 and 6. In this attempt, of course, he has failed. But the fact remains that he made an unfounded allegation of unchastity against his wife which justifies a claim by the wife for separate residence and maintenance.

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