V.V.S. Rao, J.
1. This regular appeal is by the plaintiffs, against the judgment and decree in O.S. No.168 of 1981, dated 13.10.1986 on the file of the Court of Subordinate Judge, Madanapalle. The first plaintiff is wife and plaintiffs 2 and 3 are daughters of first defendant. The suit was filed for maintenance at the rate of Rs.300/-per month and for marriage expenses for plaintiffs 2 and 3 at the rate of Rs.30,000/-each. The trial Court dismissed the suit on the ground that the first defendant is not guilty of desertion or abandonment of first plaintiff, and also on the ground that the first plaintiff was not entitled to live separately. The pleadings in brief may be noticed by referring to the parties as they are arrayed in the suit.
2. The first plaintiff and the first defendant lived together along with their children till about two months prior to the date of filing of the suit. The first defendant joined hands with second defendant, who poisoned the mind of former carrying tales against the first plaintiff. This resulted in erosion of love and affection towards the plaintiffs. For two months the first defendant did not pay any amount to the plaintiffs to maintain even the minor children and neglected the family. The parents of the first plaintiff came to Madanapalle and tried to mend the conduct of the first defendant in vain. Elders were also unsuccessfully sent to talk to first defendant so that plaintiffs can join him. On 14.10.1981 the first defendant with the support of the second respondent sent a rowdy person by name, Srinivasulu Naidu, son of Gopalu of B.K.Palle, to the house of first plaintiff where she has been residing, to see that she is dishonoured and defamed. The first defendant did not come to his house to see the children. The second defendant plunged the first defendant into habit of drinking and playing cards and moving in bad company of rowdy persons. The second defendant did all this to knock away theproperties of the first defendant over which the plaintiffs got right for maintenance. The plaintiffs came to know that the second defendant tried to take some nominal and fraudulent documents from the first defendant with a view to defeat and defraud the maintenance right of plaintiffs. The first plaintiff issued Lawyer's notice dated 15.10.1981 calling upon defendants not to indulge in such activities. This was replied by the first defendant on 28.10.1981 with false allegations. The first defendant has been working as 'photo frame worker' in glasses and being a best artist in writing pictures, he is earning Rs.2,000/- per month though he is a stone deaf person. The plaint A schedule property house is worth Rs. 1,00,000/-. He is also getting monthly rent of Rs.160/- for his house situated in Society Colony. The plaintiffs required an amount of Rs.300/- for clothing, food and educational expenses and an amount of Rs.30,000/-towards marriage expenses for each of the plaintiffs 2 and 3. The first defendant made unfounded allegations of adultery against the first plaintiff. Hence, the first defendant is bound to pay the maintenance as claimed, and the plaint A schedule house is liable to be proceeded against for realisation of maintenance amount
3. The first defendant filed written statement opposing the suit claim. It is denied that till about two months prior to filing of the suit first plaintiff has been living with him. It is stated that the first plaintiff deserted him earlier in 1973. Her parents brought her to his house, that she is spending his money lavishly and improperly, and that there were talks among people that she is moving freely with one Kavvuru Ramamurthy of Basinikonda developing illicit intimacy. One day he found the first plaintiff and said Ramamurthy in the house and when he chastised them they caught hold of him and beat him severely. Both of them left the plaintiffs 2 and 3 with him saying that first plaintiff would notcome back. He left the children with his maternal uncle at Chittoor, but the first plaintiff took the children from there with false representations and the first plaintiff never came to his house. Apprehending that she may resort to unlawful acts, he caused a notice issued to her to desist from any such move. After receipt of the notice, the first plaintiff filed Criminal Miscellaneous Case No.53 of 1980 in the Court of Additional Magistrate of First Class, for maintenance for herself and for plaintiffs 2 and 3 under Section 125 of Code of Criminal Procedure, 1973. Subsequently, as she did not press the petition, it was dismissed on 12.6.1980. It is stated that he got deafness from his childhood and is a photo frame worker and earning only Rs.150/- to 200/-per month and he is not best artist of writing pictures. He is not guilty of neglect or desertion of first plaintiff. For requirements of his business and to discharge his debts incurred for construction of the house and to complete the construction, he entered into an agreement of sale with second defendant in respect of the plant A schedule property, and he received an advance of Rs.4,000/- and the first item of plaint A schedule property is only worth Rs.40,000/-. He is willing to take the custody of plaintiffs and provide their needs and he is prepared to arrange for marriages of plaintiffs 2 and 3.
4. The second defendant filed a separate written statement. He denied that he poisoned the mind of the first defendant by carrying tales against the first plaintiff and he created misunderstanding between them. He has no need or occasion to lead first defendant into bad ways of life and to interfere with his private life. First defendant entered into contract with second defendant agreeing to sell item No.1 of plaint A schedule for Rs.39,000/- for his legal necessities and on the same day he received Rs.4,000/- as advance and executed an agreement of sale in favour of the seconddefendant agreeing to complete the remaining construction work. Till disputes are settled, second defendant cannot be called upon to take sale deed in terms of agreement of sale. In any event, second defendant is a bona fide purchaser for value without notice of claim. The first plaintiff cannot have any claim against item No.1 of plaint-A schedule which is agreed to be sold to second defendant. A registered notice dated 15.10.1981 was issued by the plaintiffs to him and before he could send reply the suit was filed. It is not true that item No.1 of plaint A schedule is worth about one lakh.
The trial Court framed the following issues for trial.
1. Whether the plaintiffs are entitled to claim separate maintenance from the first defendant, and if so, to what extent
2. Whether the plaintiffs 2 and 3 entitled to claim any amount towards marriage expenses, and if so, to what amount
3. Whether the plaintiffs are entitled for creation of charge over the suit properties, and if so, against which items
4. To what relief
5. The first plaintiff examined herself as P.W.I besides examining P.Ws.2 to 4 and marked Exs.A.l to A.3. The first defendant examined himself as D.W.1 besides examining D.Ws.2 to 5, and marked Exs.B.1 to B.8. The second defendant examined himself as D.W.6 besides examining D.Ws.7 and 8 and marked Exs.B.9 and B.10. Exs.C.1 and C.2 are marked by the Court at the instance of the plaintiffs.
6. The trial Court on consideration of oral and documentary evidence came to the conclusion that the plaintiffs are not entitled to claim separate maintenance from the firstdefendant and that the plaintiffs 2 and 3 are not entitled to claim any amount towards marriage expenses. As consequence of findings on issues 1 and 2, the trial Court recorded a finding on issue No.3 that the second defendant bona fide entered into agreement of sale with the first defendant and therefore the second (sic cannot be) defendant deprived of his rights under the agreement of sale.
7. In this appeal Sri K. Sitaram, learned Counsel representing Sri C. Sadasiva Reddy, learned Counsel for the appellants/ plaintiffs submits that the first defendant deserted and wilfully neglected to maintain the first plaintiff without any reasonable cause, and therefore she is entitled to claim maintenance under Section 18(2)(b) and Section 18(2)(g) of the Hindu Adoptions and Maintenance Act, 1956 (for short, the Act). He further urges that there is ample evidence to show that the first defendant always made unfounded allegations of unchastity against the first appellant which itself is a sufficient ground for her to claim separate residence and maintenance. He also submits that the first plaintiff performed marriages of plaintiffs 2 and 3 and incurred huge expenditure and as father first defendant has pious obligation to meet the marriage expenses. In support of his submissions the learned Counsel placed reliance on C. Jagannadham v. C. Savithramma, : AIR1972AP377 , and a Division Bench judgment of this Court in K Anji Reddy v. V. Venkataramanamma, 1988 (2) ALT 486 (DB). The learned Counsel further urges to accept the deposition of the first defendant herein as P.W. 1 in O.S.No.422 of 1996 filed against the plaintiffs for eviction. He contends that in the said deposition the first defendant admitted that plaintiffs 2 and 3 are with him and that he did not perform marriages of two daughters.
8. Sri B.V.S.S. Prasad, learned Counsel representing Sri M. Chandrasekhar Rao,learned Counsel for the first defendant, submits that the first plaintiff being a woman of unchastity she is not entitled for maintenance, and that she herself deserted her husband and therefore not entitled for any maintenance under Section 18(1)(b) of the Act.
9. Sri K.V. Reddy, learned Counsel for the second defendant, placed reliance on Section 39 of the Transfer of Property Act in support of his submission that second defendant being bona fide purchaser cannot be burdened with the charge even if maintenance is decreed by the Court.
CMP Nos.20801 of 2001 and 8557 of 2002:
10. The first defendant filed C.M.P.No.20801 of 2001 praying this Court to receive additional evidence as Exs.B.11 to B.15. These are certified copies of order in O.P.No.81 of 1987 on the file of the Subordinate Judge, Madanapalle, copy of the decree in the said O.P and a copy of the order in M.C.No.40 of 1992 on the file of the Court of II Additional Judicial Magistrate of I Class and two wedding cards of defendants 2 and 3 respectively. In support of the application filed under Order 41 Rule 27 of CPC it is stated that the first defendant filed O.P.No.81 of 1987 for dissolution of marriage which was allowed by decree dated 3.6.1996, that defendants 2 and 3 filed M.C.No.40 of 1992 claiming maintenance at the rate of Rs.500/- per month which was allowed only insofar as the third defendant is concerned and that he has been paying an amount of Rs.300/-to third defendant till she became major. He also alleged that he and first plaintiff together performed marriages of daughters of 2 and 3 and shared the expenses and in proof of the same, he filed wedding cards. This application to receive additional evidence is not seriously opposed. Hence the same is allowed and the documents referred to hereinabove are marked as Exs. B. 11 to B. 15. As noticed, the plaintiffs also filed an application being C.M.P.No.8557 of 2002 under Order 41 Rule 27 of CPC to receive deposition of first defendant as P.W.I in O.S.No.422 of 1996 and mark the same as Ex.A.4 in the suit.
11. The learned Counsel for first defendant Sri Prasad opposed this application contending that the deposition of the first defendant in O.S.No.422 of 1996 is not admissible, and that unless first defendant is confronted with deposition in O.S.No.422 of 1996 the probative value of the said evidence is negligible or stands diminished. Alternatively he contends that in the deposition in O.S.No.422 of 1996 he never admitted that he has not performed marriages of daughters, but it only meant he has not exclusively performed the marriages. In opposition to marking deposition of P.W. 1 he placed reliance on a judgment of Constitution Bench of the Supreme Court in K. Venkataramaiah v. A. Seetharama Reddy, : [1964]2SCR35 .
12. The objections raised by the learned Counsel for the first defendant for marking deposition of the first defendant in the subsequent suit as Ex.A.4 are liable to be rejected for reasons more than one. The suit filed by the plaintiffs in 1981 was dismissed on 13.10.1986. The first defendant thereafter filed O.S.No.422 of 1996 on the file of the Court of I Additional Junior Civil Judge, Madanapalle for declaration of title and possession of suit property which was in possession of the first defendant since long. While deposing that his wife is not of good character he also mentioned that he obtained divorce in O.P.No.81 of 1987, that the suit filed by her being O.S.No.168 of 1981 (out of which the present appeal arises) was dismissed, and that his wife has no right or title to the property in which he is staying. By the time he was examined on 3.9.2001, it should be presumed that the first defendant has knowledge of the appealpending before this Court. He is aware that the suit filed by his wife is for maintenance and marriage expenses of two daughters. Therefore, nothing prevented him to take a stand as is now projected in the case. He stated that he has not performed marriages of his daughters. This he stated probably to thwart any claim by her in the house. He indeed denied a suggestion that the suit house was acquired by his mother and therefore his daughters have share in it. The deposition having been made subsequent to appeal assumes the character of subsequent event and it is relevant for deciding one of the points that arises for consideration in this case. In any view of the matter, in the counter affidavit filed in C.M.P.No.8557 of 2002 the first defendant explained his admission in the deposition before the Court in O.S.No.422 of 1996. Therefore, even if the first defendant is not confronted with the deposition, an affidavit filed before this Court on oath contains an explanation for the admission and no prejudice is caused to him by receiving his deposition as evidence in this appeal. Further, as per Section 18 of the Indian Evidence Act, 1872 a statement made by a party having proprietary interest in the subject-matter of appeal is an admission which suggests an inference to the fact in issue. Where there is no denial of making such deposition in the counter filed in the C.M.P., it must be taken as proved within the meaning of definition of the 'proved' in Section 3 of the Evidence Act. Therefore, I overrule the objections of the learned Counsel for the first respondent and direct to mark the deposition of the first defendant made on 3.9.2001 and 9.10.2001 given before the Court of First Additional Junior Civil Judge, Madanapalle, in O.S.No.422 of 1996 as Ex.A.4.
Points for consideration:
13. In view of the rival submissions, the three points that arise for consideration are:
(1) Whether the plaintiffs are entitled to seek maintenance from the first defendant
(2) Whether the first plaintiff can separately claim marriage expenses from the first defendant for allegedly performing marriages of plaintiffs 2 and 3 and,
(3) Whether a charge over the suit property can be claimed by the plaintiffs
In Re Point No. 1:
Whether the plaintiffs are entitled to seek maintenance from the first defendant
14. This point for consideration can be considered under two headings, namely, (i) The question of threat to life and (ii) the question of unchastity of first plaintiff.
(i) The question of threat to life
15. Hindu wife is entitled for maintenance whether or not the husband possesses property. As per Hindu customary law as well as Statute law maintenance of wife by her husband is a matter of personal obligation arising from the very existence of the relationship. It is independent of the possession of ancestral or self-acquired property by the husband. The right of Hindu wife of maintenance is so important that she has claim even against property in the hands of transferee from the husband. To start with, the right of maintenance and separate residence was regulated by Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. This Act has been repealed by Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Hindu Adoptions and Maintenance Act provides for maintenance. It reads:
18. (1) Subject to the provisions of this Section, a Hindu wife, whether marriedbefore or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,--
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) If he is suffering from a virulent form of leprosy;
(d) If he has any other wife living;
(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) If he has ceased to be a Hindu by conversion to another religion;
(g) If there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
16. It is the submission of the learned Counsel for the appellants that the first plaintiff has cause justifying in living separately with her children because she had threat of life from the first defendant. He also contends that the first defendant abandoned her without any reasonable cause and wilfully neglected her. On the contrary, learned Counsel for the first respondent - husband contends that Hindu wife living in unchastity cannot claim any maintenance and separate residence underSection 18 of the Hindu Adoptions and Maintenance Act and that the first plaintiff has no cause justifying her living separately and that she herself left the first defendant with the children to pursue her amorous life.
17. The plaintiffs alleged in the plaint that the second defendant poisoned the mind of the first defendant by carrying tales against the first plaintiff and what all affection the first defendant had towards plaintiffs evaporated. For about two months continuously the first defendant did not pay any amount to the plaintiffs to maintain even the minor children and he neglected them. The efforts of the parents of the first plaintiff also failed. When the parents of the first plaintiff and other elders tried to forge an understanding the first defendant sent a rowdy by name Srinivasulu Naidu, son of Gopalu of B.K.Palle to the first plaintiff to see that she is dishonoured and defamed.
18. The first plaintiff examined herself as P.W. 1. In her evidence, she stated that the second defendant and another person by name Chalapati trespassed into her house, beat her and took away all the household articles. She gave a complaint against Chalapati to the Police. The complaint has not been exhibited as document. Be that as it is, Srinivasulu Naidu, who is alleged to have threatened her as per pleadings is not even summoned by her. In the plaint it is alleged that it is Srinivasulu Naidu, who came to her house to dishonour and defame her, but in the evidence another person Chalapati is said to have beat her. In the cross-examination it was suggested to her Srinivasulu Naidu never came to her house and threatened her and that she never gave a complaint against Chalapati, who allegedly took away cooking utensils. She denied the same. She admitted that the police did not file charge sheet against her husband or Chalapati, but Police warnedthem. The evidence of P.W.1 on this aspect has to be rejected for the reason that none of the other witnesses were examined by her to support P.W.1 It is her case that by reason of promiscuous conduct of the first defendant as well as his continuous attempts to harm first plaintiff, she was forced to leave matrimonial home to her parents house with children, which is not supported by the evidence. The stand taken in the plaint as well as in the evidence is altogether different. Therefore, the submission of the learned Counsel that she has threat to her life and her husband treated her with cruelty compelling her to leave the house is not supported by pleadings or evidence. In C. Jagannadham 's Case (supra) it was held:
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 her 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 the 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 each case.
19. There is any amount of vacuum in the pleadings and evidence with regard to details when she apprehended threat to herlife and when Srinivasulu Naidu or Chalapati came to her house and took away cooking utensils and beat her. If it is long prior to filing of suit or long prior to actual separation between the plaintiffs and first defendant, Court can even infer that notwithstanding the attempts by Srinivasulu Naidu and Chalapati to physically hurt her at the behest of the first defendant, she never had any apprehension of danger to her life. Therefore, it must be held that there was no threat to her life and on that ground she could not be said to have a valid or sufficient reason to desert the first defendant.
20, The first defendant examined himself as D.W.1 In his evidence he stated that he married P.W.1 fourteen years prior to filing the suit, that since marriage P.W.I is not complying with orders and was not living with him amicably. She left the house without informing him and on searching they found P.W.1 at Kurbalakota level crossing gate with one Raghu who ran away on seeing him. D.W.1 brought her home and summoned parents of P.W.1 and senior paternal uncle and another elder of P.W.1's native place. They chastised P.W.1 and took P.W.1 to their village and they did not send her back. He then got issued Ex.B.3 legal notice dated 8.5.1973 demanding conjugal rights which was received by P.W.1 Parents of P.W.1 brought her back and even afterwards she was not living good life. She used to wander in the town and commit wastage in maintenance of the house. He also deposed that in spite of her revolting nature, he adjusted with her for about five or six years and during which period plaintiffs 2 and 3 were born and he shifted his residence to a rented house in Bandameeda Kammapalle. He also deposed that he came to know that P.W.1 developed illicit intimacy with one Kawuru Ramamurthy of Basinikonda and when he found them together and he chastised her P.W.I went away along with Ramamurthy.He left plaintiffs 2 and 3 in his uncle's place at Muthukur, but P.W.1 and her mother had taken away plaintiffs 2 and 3 clandestinely. Then he got issued Ex.B.6 notice informing them that he is not in any way liable to pay maintenance to her. D.W.2 is uncle of D.W.1 with whom children were left. He gave evidence supporting D.W.1 that after P.W.I left, the children were left with him, and that first plaintiff took away children from his house. The evidence of D.Ws.1 and 2 therefore also leads to an inference that there was threat to life of P.W.1 is not proved. Therefore, this question is answered accordingly.ii. Question of unchastity of first plaintiff
21. The first defendant opposed the suit alleging that the first plaintiff deserted him in 1973, that though she is quarrelsome he lived with her on the advice of her parents and elders and that she developed illicit intimacy with one Kavvuru Ramamurthy of Basinikonda. When he found the first plaintiff in compromising position with Ramamurthy and chastised her, she left him saying that she would never come back. He also alleged that he caused a notice issued to her to preempt her from resorting to any unlawful activities, that her Criminal Miscellaneous Petition No.53 of 1980 filed under Section 125 of the Code of Criminal Procedure on the file of the Court of Additional Magistrate of First Class, Kollar Gold Fields, was dismissed on 12.6.1980 as not pressed. He also alleged that she herself abandoned him and that the first plaintiff took away children from the house of his uncle without his knowledge,
22. To prove that the first plaintiff was insolent and promiscuous having illicit relations with Ramamurthy first defendant examined D.Ws.2 to 7 besides himself as D.W.1. He also marked Exs.B.3, B.4, B.6 and B.8 purporting to show that since the earlier days of marriage between first plaintiffand the first defendant she was of promiscuous nature. In a sense the first defendant wants to deny the first plaintiffs maintenance and separate residence alleging that the plaintiff is unchaste.
23. On the other hand, the learned Counsel for the appellants-plaintiffs submits that the allegations of unchastity are unfounded and therefore first plaintiff against whom unfounded allegations are made is entitled to claim maintenance from the husband. He placed reliance on two judgments referred to earlier. It is therefore required to see whether the allegations of unchastity made by the first defendant against the first plaintiff are proved and whether they are unfounded allegations giving a cause to the first plaintiff to live separately.
24. What is the standard proof of allegations required in matrimonial cases especially the allegation of unchastity or adultery. There is no gainsaying that to succeed on any issue the plaintiffs bear the legal burden of proof and must satisfy the Court of the likelihood of the truth of the case by adducing proper evidence of great weight than the opponent. Such evidence adduced must be sufficient to satisfy the Court to the required standard or degree of proof. The standard of proof differs in criminal and civil cases. In civil cases, the standard of proof is satisfied on the balance of probabilities. But in criminal cases and in contempt cases the prosecution is required to prove beyond reasonable doubt. Till recently, in matrimonial cases, especially involving allegations of unchastity and adultery the Courts insisted to prove beyond reasonable doubt. But, it is now settled that even allegations of adultery and unchastity need to be proved applying standard of civil cases. In other words, the proof of adultery on the balance of probabilities is sufficient. Therefore, it is not necessary for the first defendant toprove the allegation that the first plaintiff was having illicit intimacy with Ramamurthy beyond reasonable doubt.
25. As D.W.1, the first defendant deposed that first plaintiff is in the habit of leaving home without informing him. He also deposed that after one year of marriage she left the house and was traced at Kurbalkota level crossing with one Raghu. He then issued Ex.B.3 notice dated 8.5.1973 which was received by P.W.I under acknowledgement Ex. B.4. She did not reply. But, her parents and elders came to him and left first plaintiff with him whereupon they lived together for five or six years during which time plaintiffs 2 and 3 were born. He further deposed that P.W.I developed illicit intimacy with one Kawuru Ramamurthy of Basinikonda and when he returned to Madanapalle at 9.00 p.m. he found doors of the house closed from inside, that he peeped through window and found P.W.I and Ramamurthy lying together inside the house in a compromising position on the cot. He informed neighbours and brought them. All of them knocked on the doors and he chastised her. P.W.1 left with Ramamurthy stating that she will not live with D.W-1. To corroborate D.W.1, D.Ws.3, 4 and 5 were examined.
26. D.W.3 is owner of shop adjacent to D.W.1's shop and also was living in the house in mango-garden where D.W.1 used to live. He speaks about the incident when P.W.1 left the house and found at Kurbalkota with another person. He only deposed that on seeing them the person who was with P.W.1 ran away and later they brought back first plaintiff. He does not mention the name of the person who was with P.W.I in 1973. D.W.4 deposed that he was residing in Aminenivari street in Bandameeda Kammapalle town about four years ago and at about 9.00 p.m. on one day he heard the people quarrelling at the house of the first defendant, that when he wentthere, persons gathered were chastising P.W.1 and another boy as they were together found in compromising position in their house. He deposed that the boy who was being chastised was about 19 to 22 years. In the cross-examination he also alleged that Ramamurthy was having illicit relationship with one Reddemma whose house is situated on the northern side of his house and Ramamurthy used to come to house of Reddemma now and then. He also states in the cross-examination that he had not personally seen Ramamurthy and P.W.1 in compromising position. D.W.5 is a lady by name Sakunthalamma. She is also resident of Amineni Street. She deposed that about four or five years ago on one day at about 9.00 p.m. there was quarrel at the house of first defendant and on hearing the noise she went there and found one Basinikonda man whose name she does not know in the house of first plaintiff and that elders sent the Basinikonda man outside and chastised the first plaintiff. She also deposed that Basinikonda man used to come to residence of Reddemma who is 70 to 80 years old. It was suggested to her that she was intending to marry first defendant and therefore she gave false evidence. Apart from the evidence of D.Ws.1 to 5, reliance is also placed on Exs.B.3, B.4, B.6 and B.8, notices issued on behalf of the first defendant by his Lawyer. In all these notices, the first defendant mentions about the alleged illicit intimacy of P.W.1 with Ramamurthy.
27. The first defendant also filed O.P. No.81 of 1987 under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act, 1956 op the file of the Court of Subordinate Judge, Madanapalle inter alia alleging that his wife is leading unchaste life with Ramamurthy who is arrayed as second respondent in the said O.P. The said Court also framed points for consideration as to adultery pleaded by husband. The Court recorded a finding that there is absolutely nothing on record toprove that first plaintiff has been maintaining illicit relationship with Ramamurthy. This is marked as Ex.B.11 in this appeal. The trial Court in its judgment in O.S.No.168 of 1981 did not record any finding against the first plaintiff, but observed that the evidence of D.Ws.4 and 5 cannot be discredited. The evidence of D.W.1 and notices Exs.B.3, B.4, B.6 and B.8 are of not much help; to prove his allegation. He has to necessarily fall back on the evidence of D.Ws.3, 4 and 5. D.W.3 speaks about the incidence that occurred at or about 1973 or one year after marriage of first plaintiff and first defendant. He also does not mention name of the person in whose company P.W.1 was found at Kurbalakota level crossing. The evidence of D.Ws.1 and 2 insofar as 1973 incident is concerned at best can lead to an inference that P.W.1 in early stages of marriage was insolent and not a woman to confine herself to matrimonial home. This cannot be put against P.W.1 for D.W.1 admits that after the incident parents of P.W.1 brought her to D.W.1 and they lived happily for about five or six years during which period plaintiffs 2 and 3 were born. Therefore, any objectionable conduct on the part of P.W.1 was condoned by D.W.1 Insofar as the incident spoken to by D.W.1 regarding his allegation of finding P.W.1 and Ramamurthy in compromising position, except his evidence there is no corroboration. D.W.4 admitted in the cross-examination that he has not personally seen Ramamurthy and P.W.1 in compromising position. D.W.5 also says that she went to the place where there was quarrel and people were chastising P.W.1. She also does not corroborate D.W1's deposition that he peeped through window and, found P.W.1 and Ramamurthy in compromising position. On balancing of probabilities, it is not possible to accept the contention of first defendant that first plaintiff is having illicit intimacy with Ramamurthy,
28. Notwithstanding his repeated legal notices referred to herein above, thesubmission of the learned Counsel for the first respondent that P.W.1 did not reply to the legal notices and therefore due weight should be given to the legal notices issued by D.W.1, cannot be countenanced. The Court cannot readily infer any admission on the part of wife who fails to send reply notice to the husband's notice alleging adultery. If really D.W.1 had acceptable proof that P.W.1 was having illicit relations with Ramamurthy nothing prevented to proceed further legally or otherwise, but he merely got issued legal notices and kept quiet. This is not properly explained as to why he did not take any action. He also does not speak anything about this in the evidence. Therefore, the allegation that first plaintiff was of unchaste character and is not entitled for maintenance is liable to be rejected. Can it be said that there is a reasonable cause for first plaintiff to live separately and claim maintenance.
29. As noticed Hindu wife is entitled to live separately and claim maintenance inter alia if husband is guilty of desertion and he treated his wife with cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband, if he is suffering from a virulent form of leprosy and if there is any other cause justifying her living separately. Unfounded allegations of unchastity would result in mental cruelty to Hindu wife. No Hindu wife can tolerate a husband or for that matter anybody who makes allegations of adultery or unchastity against her. Unfounded allegations by husband of unchastity would certainly cause a reasonable apprehension in the mind of Hindu wife that her life may not be safe. She has every justification to live separately and claim maintenance.
30. In C. Jagannadham 's case (supra) this Court held as under:
It is also significant to note that in the written statement, the defendant made an allegationof unchastity. In fact, he alleged that his wife was freely leading a fife 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, dated 14.12.1970 (Andhra Pradesh) 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 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 proved 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 and injurious to live with her husband. But the Court is surely entitled to take into consideration the subsequent events in moulding 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 terms 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.
31. The first defendant is in the habit of making allegations against first plaintiff about unchastity. Therefore, P.W.1 is justified to live separately. It is also probable that herhusband came under influence of second defendant and others and neglected her. He stopped giving any money for maintenance of the family. It is probable that D.W.1 neglected plaintiffs being poisoned by wild allegations made against P.W.1. Therefore, she is justified in living separately and claim maintenance. On mere allegation of unchastity first plaintiff cannot be denied maintenance. Though D.W.1 alleged in the written statement that he was always ready to maintain children, after children were taken away from house of D.W.2 by P.W.1, D.W.1 never made any attempt much less approached the District Court or any other Court seeking custody of the children. He allowed the children to grow with P.W.1 and therefore by making a statement that he was ready to maintain the children he cannot escape the liability to maintain the children. Be it noted that under Section 20 of the Hindu Adoptions and Maintenance Act, a Hindu father is bound to maintain his legitimate and illegitimate children. This point is answered accordingly.
In Re Point No.2
Whether the first plaintiff can separately claim marriage expenses from the first defendant for allegedly performing marriages of plaintiffs 2 and 3?
32. The suit was filed for maintenance at the rate of Rs.300/- per month and marriage expenses of plaintiffs 2 and 3 at the rate of Rs.30,000/- each. The first defendant denied any liability. He also made a submission in the written statement that he is willing to take custody of the plaintiffs 2 and 3-daughters and provide for their needs and to arrange for their marriages. During the pendency of the appeal marriage of second plaintiff-Hemalatha was performed on 8.3.1996 and marriage of third plaintiff- Vani was performed on 27.6.1997. The marriage of second plaintiff was performed at SriVenkaramana Swamy Kalyana Mantapam, Bangaru Tirupati (Guttivella) and marriage of third plaintiff was performed at Kolluru. Wedding cards are marked as Exs.B.14 and B.15. Placing reliance on these, the learned Counsel for first respondent contends that the first defendant performed marriages of plaintiffs 2 and 3. This is opposed by the learned Counsel for the plaintiffs placing reliance on certified copy of the deposition of first defendant in O.S.No.422 of 1996 as P.W.1. In the said deposition he admitted that he has not performed marriages of his daughters. Exs.B.14 and B.15 are also not of much help. These two invitation cards would show that invitations for marriages were extended by Smt & Sri K.V. Jaggappa and Smt & Sri S. Anjaneyulu. Taking advantage of the name of first defendant appearing in invitation cards, it is contended that he also performed marriages. This cannot be accepted for if really D.W.1 performed marriages there was no necessity to perform marriages at a different place than Madanapalle. There was also no necessity to print invitation cards in Kannada at a different place. Therefore, I hold that the first defendant has not performed marriages and it is only the first plaintiff who performed marriages. In her evidence as P.W.1 she stated that she requires Rs.600/- per month for maintenance and Rs.30,000/- for performance of marriages of daughters. That was before marriage, and as on today there is no evidence as to how much amount is spent by P.W.1 for performing marriages of plaintiffs 2 and 3. Be that as it is, a Hindu father has pious obligation of performing marriages of daughters and provide for their well being before marriage and also reasonably take care of them even after marriage in certain circumstances. This is not denied by the first defendant or his Counsel. As marriages were performed in March, 1996 and June 1997 and as P.W.1 stated in her evidence that she requires Rs.30,000/- for performing marriages of theirdaughters, I hold that first plaintiff is entitled to an amount of Rs.30,000/- payable by first defendant being expenses towards marriages of daughters. Point No.2 is answered accordingly.
In Re Point No. 3
Whether a charge over the suit property can be claimed by the plaintiffs
33. The plaintiffs allege that the first defendant so as to escape the liability of marriage expenses alienated house -plaint A schedule property, that the said property is liable to be proceeded against for realization of maintenance and prayed for charge to be created over the property. The first defendant in the written statement contends that for meeting his business needs and to discharge the debts incurred in construction of the house and to complete the construction he entered into agreement of sale with the second defendant in respect of plaint A schedule property and received advance of Rs.4,000/-. The agreement dated 2.9.1981 is marked as Ex.B.9. He also alleged that item No.1 of plaint A schedule house worth about Rs.40,000/- and that the rent for the item No.2 is not as alleged by the plaintiffs. As D.W. 1 the first defendant reiterates his plea in the written statement. The second defendant also filed a separate written statement inter alia alleging that the first defendant entered into agreement with him for his legal necessities and received Rs.4,000/- as advance agreeing to complete the remaining construction work, that on 31.10.1981 the first defendant extended the time by another three months as the construction was not completed, that he is a bona fide purchaser and that as on the date of the execution of Ex.B.9 there were no objections or disputes as to maintenance and marriage expenses. He also admits that he received Ex-A.1 Lawyer's notice issued by the plaintiffs. He opposed creation of anycharge on item No. 1 of plaint A schedule property. In support of his plea that he is a bona fide purchaser and that D.W.1 had legal necessity like construction of incomplete house, he examined D.Ws.6, 7 and 8.
34. D.W.8 is a retired Sub-Registrar and licensed document writer since 1974. He deposed that he scribed Ex.B.9 agreement and that second defendant paid earnest money of Rs.4,000/- to the first defendant. It was attested by D.W.7 and another in his presence. He admits that as on the date of Ex.B.9 building was not completed and that he does not know whether Municipality gives number to the house till the entire work is completed. D.W.7 is a resident of Kurbalakota and he stated that he and one Sheshappa Chetti attested Ex.B.9 and that ten days prior to expiry of two months time second defendant took him to the first defendant to demand him execution of sale deed after receiving balance of sale consideration. He further admits that he does not know whether the first defendant completed remaining works/repairs and that there is no specific mention in Ex.B.9 about the need for which the house was sold. D.W.6 is the second defendant himself. He admits that he did not enquire about wife and children of first defendant and that he did not make any enquiries about them. He also states that he did not take any steps to get sale deed registered though injunction petition against him was dismissed. He also admits that when he purchased the house it was incomplete and first defendant wanted some time for completion of the work before executing sale deed. He nowhere denies the allegation in the written statement that he is well-known to first defendant. In the background of this evidence, we need to consider as to whether there was any legal necessity for the first defendant to dispose of item No.1 of plaint A schedule property. It is not denied that the first defendant owns two houses. One is item 2 old house which is under tenant andthe other is item No.1 of plaint A schedule. It is admitted that the property which was sold under Ex.B.9 was incomplete house. It is yet to be completed and repaired. Except saying that he sold the house for completing construction of other house and for the purpose of business, no details are given. In fact it is in the evidence that the value of the stock in first defendant's photo-frame shop does not exceed more than Rs.2,000/- and total investment in the shop is Rs.3,000/-. It is also not the case that after taking advance of money of Rs.4,000/- the first defendant purchased any other stock. He has also not stated anything in the evidence that he has completed house after obtaining advance. In fact, it is in the evidence of D.W.6 and D.W.7 that as the first defendant could not complete the construction of the house within two months stipulated for execution of sale deed both of them went to the first defendant and got the time extended for execution of the sale deed. Very peculiarly Ex.B.9 was brought into existence on 12.9.1981. Immediately thereafter plaintiffs got issued Ex.A. 1 notice demanding maintenance and filed a suit thereafter. The sale agreement Ex.B.9 executed when the disputes between first plaintiff and first defendant are at peak would support the version of the plaintiff that first defendant so as to deprive the plaintiffs' maintenance tried to dispose of item No. 1 of plaint A schedule property. Defendants 1 and 2 did not lead evidence to prove bona fide nature of the sale under Ex.B.9. Except saying that when first defendant approached the second defendant, the latter without making any enquiries about wife and children entered into agreement.
35. Sri K. V.Reddy, learned Counsel for the second defendant placed reliance on Section 39 of the Transfer of Property Act in support of his contention that being bona fide purchaser he cannot be burdened with the charge. Section 39 of the Transfer of Property Act reads as under:
39. Transfer where third person is entitled to maintenance :--Where a third person has a right to receive maintenance or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.
36. A plain reading of the provision would show that an agreement holder of immovable property on which a charge is claimed has to prove that he is a bona fide purchaser for consideration and that without notice a charge is created. I have already held that Ex.B.9 agreement was executed by the first defendant in favour of second defendant when the disputes started, and the second defendant, having paid advance on the date of execution of the agreement without informing about wife and children of the first defendant, cannot be considered as a bona fide purchaser. In the cross-examination of D.W.1 it was suggested to him that the house which was sold and which is subject matter of Ex.B.9 is more than Rupees one lakh. As purchaser is defendant to the suit, he cannot complain even if any charge is created on the same. It is not denied before me that though Ex.B.9 was executed possession was not delivered to him and indeed first defendant filed another suit against the first plaintiff seeking eviction of the first plaintiff from the said property. Therefore, Section 39 of the Transfer of Property Act would not assist the second defendant. Therefore, the right of the plaintiff to receive maintenance or provision for marriage can be enforced by creating charge on the property. This point is answered accordingly.
37. In the result, for the above reasons, the appeal succeeds and is allowed, and the judgment of the learned Subordinate Judge is set aside. The suit being O.S.No.168 of 1981 on the file of the Court of the Subordinate Judge, Madanapalle is decreed as prayed for with costs throughout.