Karam Chand vs Taro Devi And Another

Tarlok Singh Chauhan, J

The defendant is the appellant, who aggrieved by the judgment and decree passed by the learned Court below, whereby it awarded a sum of Rs.500/- as maintenance to the plaintiffs/ respondents, has filed the instant appeal.

The parties hereinafter shall be referred to as the ‘plaintiffs’ and the ‘defendant’.

Briefly stated the facts of the case are that the plaintiffs filed a suit for recovery of past as well as future maintenance with a further prayer for creation of charge of maintenance over the land detailed in the plaint and for permanent prohibitory injunction restraining the defendant from cutting the trees etc. during the pendency of the suit and also for restraining the defendant from alienating the suit property.

It was averred that defendant is the owner in possession of the suit land. Plaintiff No.1 was the legally wedded wife of defendant and out of the wedlock, plaintiff No.2 had been born. The defendant started maltreating the plaintiffs and separated them from his family and, in addition thereto, they were subjected to domestic violence. Since, the plaintiffs were extremely poor and had no source of income, hence, the suit.

The defendant contested the suit by filing written statement wherein preliminary objections qua maintainability, cause of action and estoppel, were taken. On merits, it was admitted that he is an absolute owner in possession of the suit land and that plaintiff No.1 is his legally wedded wife and plaintiff No.2 is his daughter. However, the allegations of maltreating and beatings were denied. The defendant has also stated that he has to take care of his 85 years old mother and he had already been paying maintenance under the Domestic Violence Act and, as such, the plaintiffs were not entitled to any other maintenance as the defendant was himself in old-age and required the property for his old-age.

From the pleadings of the parties, the learned Court below framed the following issues:

“1. Whether plaintiffs are entitled to decree for recovery of arrears of past maintenance of Rs.72,000/-each w.e.f. 01.01.2012 to 31.12.2012 and future maintenance at the rate of Rs.3,000/- each as prayed for?OPP.

Whether plaintiffs are entitled to decree for creation of charge over the suit land in their favour as prayed for? OPP.

Whether plaintiffs are entitled to relief of permanent prohibitory injunction as prayed for? OPP.

Whether suit of the plaintiffs is not maintainable? OPD.

Whether the plaintiffs have no cause of action to file the present suit? OPD.

Whether plaintiffs are estopped from filing the present suit by their own act and conduct? OPD.

Relief.”

The parties led evidence and on the basis of the same, the learned Court below decreed the suit as aforesaid and aggrieved thereby the defendant has filed the instant appeal.

It is vehemently argued by Shri Ajay Sharma, Senior Advocate assisted by Shri Ajay Thakur, Advocate, for the appellant that since the findings recorded by the learned Court below are perverse, therefore, the same are liable to be set aside. He would further contend that since the plaintiffs have already been held entitled to Rs.1,000/- in a case under the Domestic Violence Act, therefore, they are not entitled to any other or further amount.

On the other hand, Shri Vishal Singh Thakur, learned counsel for the respondents, would argue that the findings recorded by the learned Court below are in tune with law and further it is settled proposition of law that a claimant would be entitled to maintenance, if legally proved, under more than one statutes.

We have heard the learned counsel for the parties and have gone through the material placed on record.

As regards the second contention, it is no longer res-integra that a wife can claim maintenance under different statutes. Reference in this regard can conveniently be made to one of the fairly recent judgments of the Hon’ble Supreme Court in Rajnesh vs. Neha and another (2021) 2 SCC 324, wherein it was observed as under:

“I. Issue of Overlapping Jurisdiction

Maintenance may be claimed under one or more of the afore-mentioned statutes, since each of these enactments provides an independent and distinct remedy framed with a specific object and purpose. For instance, a Hindu wife may claim maintenance under the Hindu Adoptions and Maintenance Act 1956 (“HAMA”), and also in a substantive proceeding for either dissolution of marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 (“HMA”) by invoking Sections 24 and 25 of the said Act.”

As regards the first contention, it is not in dispute that the defendant is barely paying Rs.1,000/- as maintenance allowance and, in addition thereto, has given one room to the plaintiffs to reside in. The defendants owns huge land measuring 63 Kanals 6 Marlas, while, on the other hand, the plaintiffs have no source of income.

The plaintiff Taro Devi while appearing as PW-1 has specifically stated about the land holdings of the defendant and has further stated that the defendant used to harass her and give beatings to her and her daughter and used to turn out them out of the house. She further stated that the defendant was not even maintaining them which constrained them to file a petition under the Domestic Violence Act in which a sum of Rs.1,000/- were granted as maintenance to her and one room was given to her which is in a dilapidated condition. PW-1 also stated that she has no source of income and remains ill, whereas, the son of the defendant was in Dubai and now living with his father and has brought sufficient money. Even otherwise, the defendant has sufficient source of income as he was selling grass and trees that were standing on the suit land. Not only this, the defendant has sold a part of the suit land.

PW-1 was subjected to a detailed cross-examination, but the evidence led by her has remained unshattered. PW-1 has categorically denied that she had forcibly taken possession of the suit land and house of the defendant.

PW-2, Raj Kumar, has supported the case of PW-1 and clearly and categorically stated that the plaintiffs were finding it difficult to even maintain themselves on a meagre amount of Rs.1,000/-, as awarded to plaintiff No.1, as maintenance in the case relating to domestic violence. He further denied that the land of the defendant was infact in possession of the plaintiffs.

Plaintiff No.2-Nisha Rani, appeared as PW-3 and stated that her father owns land measuring 63 Kanals 6 Marlas. She further stated that the defendant used to harass and threaten them to turn out of the house. She further stated that even the maintenance of Rs.1,000/-, as awarded, was not being paid by the defendant regularly. In cross-examination, she stated that her father i.e. defendant is 67 years old and used to do agriculture work. She denied that it was the plaintiffs, who were in possession of the land.

Defendant-Karam Chand appeared as DW-1 and stated that plaintiffs had filed 2-3 cases against him. He stated that he was paying maintenance allowance in these cases. He went on to state that the plaintiffs were infact cultivating the suit land and reaping the benefits therefrom. It was the plaintiffs, who were selling the grass and trees. However, in cross-examination, he has admitted that the suit land is owned by him. He further admitted that plaintiff No.1 remains ill, but added that he too remains ill. He denied the suggestion that the plaintiffs have no source of income and added that he was paying Rs.1,000/- per month to them. He further admitted that it was not possible for two persons to maintain themselves at Rs.1,000/-, but went on to add that since his daughter is M.A. pass, therefore, she could fend for herself by doing a job.

DW-2-Daljit Singh, tried to support the claim of the defendant, but, he in his cross-examination admitted that it is the defendant, who is cultivating the suit land with the help of a tractor.

He too admitted that it was too difficult to maintain themselves at Rs.1,000/-.

In this background, we really fail to appreciate, how the defendant would maintain the appeal, given the fact that only a sum of Rs.5,00/- has been granted to the plaintiffs to maintain themselves, in addition to Rs.1,000/- and, more so, when they admittedly have no independent source of income. Whereas, the suit land owned by the defendant has been recorded as “Barani-Do-Fasli”, which means that the land is generating two crops in a year.

The instant appeal is clearly aimed at denying the legal and legitimate rights of the plaintiffs, as is evident from the fact that the defendant has not even cared to deposit the maintenance amount awarded by the learned Court below.

Since, it is not in dispute that the plaintiffs have no independent source of income, whereas, the defendant, on the other hand, is the owner of the land measuring 63 Kanals 6 Marlas, which is being ploughed by him through a tractor and reaping two harvests, therefore, we really find no perversity in the findings rendered by the learned Court below.

In the given facts and circumstances of the case and for the reasons stated above, we find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application (s), if any, also stands disposed of.