The defendant in O.S.No.18 of 1997 on the file of the Family Court, Madurai is the appellant.
2. The respondent is the wife of the appellant. The respondent filed a suit in O.S.No.18 of 1997 claiming maintenance at the rate of Rs.2000/- per month and the learned Judge ordered maintenance at the rate of Rs.1000/- per month. Aggrieved by the same, the appellant/husband filed this appeal.
3. The wife also filed a cross objection No.25 of 2007 claiming Rs.2000/- per month. Both the appeal and the cross objection were heard together.
4. The case of the plaintiff/ wife is that her marriage with the appellant took place on 12.6.1967 From the year 1973 misunderstanding arose between the parties and the plaintiff was chased out of the matrimonial home by the appellant/defendant and the appellant/defendant also married Muniammal as second wife. The further case of the plaintiff is that she filed M.C.No.433 of 1976 on the file of the Judicial Magistrate Court, No.1, Madurai and Rs.100/- was ordered in that application. The appellant owns properties and he is also employed as Co-operative Sub Registrar in Co-operative Agricultural Bank at Sivaganga and was getting a salary of Rs.8000/- per month. As she has no independent income and the appellant failed to maintain her, she claimed maintenance at the rate of Rs.2000/- per month.
5. The appellant admitted the marriage and contested that the order passed by the learned Judicial Magistrate has become final and it operates as res judicata. Further, the respondent/ plaintiff filed H.M.O.P No. 251 of 1994 on the file of the Family Court under Section 25 of the Hindu Marriage Act for payment of enhanced maintenance and that was dismissed and hence the present suit is not maintainable. He further contended that his gross salary is only Rs.9450/- per month and after deduction he is getting Rs. 4035/- only and with that amount he has to maintain his second wife and children born through her and he has also denied the income from the other sources. He has also pleaded that the marriage between him and the plaintiff has been dissolved.
6. On the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiff's marriage with the defendant is in existence or not ?
(2) Whether the plaintiff is entitled to get enhanced maintenance from Rs.100/- to Rs.2000/-
(3) Whether the suit is maintainable or not ?
(4) Whether the suit is not barred on the ground of res judicata ? (5) To what other reliefs the parties are entitled to?
7. Before the trial Court the plaintiff examined herself and two witnesses and marked five documents and the defendant examined him as D.W.1 and marked 19 documents. The learned trial Judge after analysing the evidence both oral and documentary held that the marriage between the plaintiff and the defendant is in existence and discussed the financial details of the defendant, passed the decree for maintenance at the rate of Rs.1000/- from 27.8.1996. Aggrieved by the same, the husband filed the appeal and the wife not being satisfied with the award of maintenance at Rs.1000/- filed cross objection.
8. The point for consideration in the appeal is whether the appellant is liable to pay maintenance to his wife/respondent and if so what is the amount of maintenance that can be ordered ?
9. The learned counsel appearing for the appellant did not dispute the fact that the marriage between the appellant and the respondent is in existence and the appellant is the husband of the respondent. Further, it is admitted that the appellant has married second wife and as early as in the year 1977 maintenance was awarded to the respondent by the learned Judicial Magistrate No.1, Madurai. Therefore, having regard to the fact during the subsistence of marriage of the respondent, the appellant contracted a second wife and there was an order of maintenance which would prove that the appellant is liable to pay maintenance, I hold that the appellant is liable to pay maintenance to the respondent.
10. The next point for consideration is what would be the amount that is to be awarded as maintenance ?
11. Though the appellant was working as Co-operative Sub Registrar in the Co-operative Department at the time of filing of the suit during trial he retired from service and he retired as Deputy Registrar of Co-operative Societies and is getting a substantial pension amount. Admittedly, he has a house in Vasanth Nagar and he also owns 12 houses which are rented out. As a pensioner he must be getting not less than Rs.10,000/- per month as pension and from the houses he must be getting substantial rental income. Though, at the time of trial, he had to educate his 3 children now there may not be any financial burden for him to spend for his children. Admittedly, the wife/respondent is an illiterate and she has no source of income. The wife is entitled to have the same status of living as that of her husband and having regard to the present cost of living and the status of the appellant who is getting pension and rental income from the houses, in my opinion, the monthly maintenance awarded of Rs.1000/- by the learned Judge of the trial Court is not at all sufficient and the wife/respondent is entitled to get more amount.
12. In my opinion, having regard to the present cost of living, the wife/respondent requires a minimum of Rs.1500/- to maintain herself and hence I enhanced the maintenance granted by the trial Court from Rs.1000/- to Rs.1500/- per month.
13. In the result, the appeal filed by the husband/appellant in A.S.No. 32 of 2002 is dismissed. The Cross Objection No.25 of 2007 filed by the wife/respondent is allowed and the maintenance granted by the trial Court in favour of the wife/respondent in the appeal and petitioner in the cross objection is enhanced from Rs.1000/- to Rs.1500/- per month from the date of the plaint. In the circumstances, there is no order as to costs.
kr.
To:
The Family Court, Madurai.