Dinakara Londe vs Deeksha D. Londe and Others

This appeal is filed by the defendant in O.S.No.52/98 against the judgment and decree of the Trial Court decreeing the suit declaring 2/3rd share to plaintiffs 2 and 3 in Item No. 1 of "B" schedule property, reserving their right in respect of Item No.2 to be got separated in the final decree proceedings and awarding maintenance to the first plaintiff. A charge is also created on the 1/3rd share of the defendant for payment of maintenance.

The first plaintiff is the wife and defendant is the husband. Plaintiffs 2 and 3 are their children. Since the matrimonial relationship between the first plaintiff and the defendant was strained, the wife and children are living separately. The children are minors. The wife has no means of earning. The defendant neglected to look after them. Hence, they filed the suit for partition and maintenance.

Even though the defendant engaged counsel and entered appearance, he has not filed written statement. The trial Court framed issues, went for trial. On the basis of the plaint averments, evidence adduced and the documents produced by the plaintiff, the trial Court decreed the suit as pointed out above. The defendant is questioning the legality and correctness of the judgment and decree of the trial Court.

The defendant challenged the judgment and decree under appeal only in so far as they relate to awarding maintenance of Rs.500/- per month to the wife. The same is made clear in Ground No.3 as under:

It is submitted that the above appeal is filed challenging the judgment and decree only to the extent it relates to granting monthly maintenance to the first respondent at the rate of Rs.500/- per month. The appellant humbly submits that the first respondent had claimed maintenance out of the income of the Joint Family Properties. Since the trial Court has now ordered for partition and separate possession of the joint family members, the suit schedule properties which were in possession of the appellant are no more joint family properties and the appellant has no income to pay future maintenance to the first respondent. Under these circumstances, the judgment and decree to the said extent has to be set aside by this Hon''ble Court.

So far as allotment of shares by the trial Court is concerned, the defendant has no grievance which is evident from Ground No.4 which reads as under:

It is submitted that since the appellant intended to partition and allot shares to the respondents 2 and 3 as claimed by them before the trial Court, he had not contested the suit and the appellant is ready and willing to allot respective shares to the respondents 2 and 3 even on this date.

So, we proceed to consider the grievance of defendant in awarding maintenance. At the outset, it is to be noted that the relationship between the parties is admitted. Since the husband neglected to look after the wife, the wife is entitled to claim maintenance. The husband has not opposed the claim. He has not contested the suit. Without filing written, statement he cannot find fault with the decision of the trial Court. The conduct of the husband is like a soldier facing fight in the war field with empty hands without any weapons. Having not opposed the claim and contested the suit, the husband is estopped from finding fault with the judgment and decree under appeal.

Even before this Court also the husband did not seek permission to file written statement. On the last date of hearing we had adjourned the matter to find out whether the husband is willing to deposit the arrears of maintenance. Learned counsel for the husband submits that no deposit is made and that he has no instructions in this regard. The conduct of the husband disables this Court to entertain his grievance.

Appeal is dismissed.