In support of his case that the plaintiff was not subjected to any ill-treatment at her father-in-law's place, the appellant examined besides himself five other witnesses. Their evidence is of negative character as they have stated that they are not aware of any ill-treatment meted out towards the plaintiff either by her husband or by her mother-in-law. Their evidence was considered at length by the learned Subordinate Judge who found that either they had no means to know what took place in the house of the plaintiff or some of them were so interested in the defendants that much reliance cannot be placed on their testimony. Having perused their evidence I see no reason to differ from the estimate of their credibility made by the learned Subordinate Judge. It is no answer to a charge of cruelty made by the wife for her husband to say that he himself was not guilty of any acts of cruelty but it is his mother who was so guilty. It is now well settled that a wife is entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy.
A few days thereafter, her mother-in-law did not want her to stay in the house and asked her to go back to her father's house, but on refusal, her husband against her wishes took her to her father's house and left her there. Sometime in Falgun. 1960, she was brought back to her husband's house and was subjected to harassment and physical torture from all the members of the family and was not allowed proper food and clothing and was forced to sleep in a room in the background of the house. Even the servants of the family misbehaved with her and insulted her at the instance of her mother-in-law. As the situation became unbearable she wrote a letter to her father who came and took her away from Berhampur. Thereafter she commenced the suit against her husband (Deft. 1), his brothers (Ds. 2 to 4) and his mother (D. 5). claiming maintenance at Rs. 100/- per month.
2. In the written statement filed by the appellant (D. 1), he denied the plaintiff's allegation that she was ever neglected or ill-treated in her father-in-law's house and contended that there was no cause of action for the plaintiff to claim maintenance. He also disputed the quantum of maintenance stating that he has no share in the family business and that he is maintaining himself by working as a driver on a monthly salary of Rs. 90/-. The other defendants, in addition to denying the plaint allegations regarding cruelty and supporting the case of defendant No. 1 that he had no share in the family business, disputed the plaintiff's right in the event of her setting a decree for maintenance to charge the same on family properties.
3. On a consideration of the oral and documentary evidence on record, the learned Subordinate Judge came to the conclusion that the plaintiff had been neglected, ill-treated and harassed by the defendants including defendant No. 1: that the amount of ill-treatment, harassment and neglect has been such that it was reasonable on the part of the plaintiff to apprehend that it would be harmful and injurious to her to live with defendant No. 1. He therefore, held that she was entitled to get maintenance from her husband. Regarding the quantum of maintenance, he disbelieved the defendant No. 1's case that he had no share in the joint family business; and assessing the profits of the business to be Rupees 12000/- per annum the learned Judge allowed maintenance at Rs. 65/- per month and made it a charge on the plaint 'A' schedule properties. Hence this appeal by defendant No. 1.
4. Prior to the passing of the Hindu Women's Right to Separate Residence and Maintenance Act. 1946, it was held in several cases in Courts that a wife, though normally bound to remain under the roof and protection of the husband, could claim separate residence and maintenance, if she established that, by reason of his misconduct or by his refusal to maintain her in his own place or residence or for other justifying cause, she was compelled to live apart from him. The Act of 1946 gave a statutory recognition to this right and at the same time liberalised the law in certain respects in her favour. The text of Section 2 of the 1946 enactment is substantially the same as Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act. 1956 which has repealed the 1946 enactment. Section 18 of the present Act in so far as it is material runs thus:
"18. (1) Subject to the provisions of this section, a Hindu wife, whether married before 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.- xx xx xx
(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;
XX XX XX XX"
5. The sole question therefore is whether it is established by the plaintiff that she was treated with cruelty and whether the treatment was such as to cause reasonable apprehension in her mind that it would be harmful or injurious to live with her husband. Cruelty need not always be physical in the sense that the plaintiff was tortured or assaulted by any member of the family. In determining what constitutes cruelty regard must be had to the circumstances of each particular case keeping in view the physical and mental condition of the parties and their character and social status. Any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended by the wife may be mental suffering as distinct from bodily harm, because pain of mind may be even more severe than bodily pain and a husband disposed to evil, may create more misery in a sensitive and affectionate wife by a course of conduct addressed only to the mind, than if, in fits of anger, he were to inflict occasional blows upon her person.
6. The evidence in this case has to be judged by bearing the above principles in mind. The plaintiff during her examination in Court deposed about the allegations she had made in her plaint and proved certain letters which she had on several occasions written to her father and some letters which her husband had written to her father. True it is that no other witness has been examined to corroborate her testimony. But here again it has to be remembered that the incidents about which she has deposed are those which had taken place inside the house and except the inmates thereof and the servants of the family, there is not much chance of outsiders knowing anything about these. Even if any of the neighbours of her father-in-law's family had any knowledge about the occurrence, it is highly unlikely that they would come forward to depose in her favour and against the defendants, especially when she is more or less a stranger in the sense that she belongs to a village in Puri district and had been married in the family of a business man of Berhampur who is likely to be an influential person of the locality.
The plaintiff's oral testimony however receives sufficient corroboration from letters written about the time when the incidents are alleged to have taken place -- some by her to her father and others by her husband. The earliest letter is in Ext. 1 dated 11-6-1955 written by the appellant himself to his father-in-law at Itamati wherein he stated that there was some trouble in the family over the medical treatment of the plaintiff and requested his father-in-law to take his daughter for proper treatment. He specifically mentioned therein that there was quarrel in his family for about 8 to 10 days when he proposed for medical treatment of the plaintiff and unless the plaintiff was immediately taken to her father's house, her life would be ruined.
The next letter in point of time is Ext. 4 which the plaintiff wrote to her father in September. 1955 wherein she stated that there was no improvement in her condition, that no medical treatment was arranged for her and she was living in her father-in-law's house at Berhampur with much difficulty. She requested her father to take her as soon as possible. Ext. 2 is a letter dated 7-4-1958 written by the appellant from Rourkela to his father-in-law at Itamati. This appears to be in reply to a letter which the plaintiff's father had written to the appellant seeking the latter's advice about sending the plaintiff to her father-in-law's house. The appellant stated in this letter that if the plaintiff would be sent to his house at Berhampur, he should not be blamed for the misbehaviour of his mother. This statement clearly supports the plaintiff's statement that her mother-in-law used to ill-treat her during her stay at Berhampur.
It has already been stated that sometime in the year 1958, the plaintiff voluntarily went to her father-in-law's house on hearing about the death of her father-in-law. While she was staying at Berhampur thereafter, she was alleged to have been assaulted and ill-treated by her mother-in-law. This is borne out by her letter Ext. 5 of May, 1960 written to her father wherein she stated that she was beaten by her mother-in-law as a result of which there was bleeding from her mouth and that her mother-in-law was also persuading her son the appellant that he should discard the plaintiff and marry another girl. In the last letter Ext. 6 written shortly thereafter by the that her mother-in-law and her sisters-in-law were ill-treating her had assaulted her four times and had taken her near the well threatening to drown her therein that she was not being allowed food and that they had even gone to the extent of locking up the door of the latrine to prevent her from using it. It is after the receipt of this letter that her father came to Berhampur and took her away from the appellant's house. The genuineness of these letters has not been disputed.
It may be stated here that before the institution of the present suit, the appel-lan had filed an application under Section 9 of the Hindu Marriage Act against his wife for restitution of coniugal rights and all these letters had been produced in that proceeding. On a consideration of these letters and the evidence given by the wife in that case, the Additional District Judge had come to the conclusion that the wife had been subiected to cruel treatment by the husband and his mother and sisters and that the treatment meted out to her was sufficient to create an apprehension in her mind that it would be harmful and injurious for her to live with her husband. In this view of the matter, the application for restitution of coniugal rights had been dismissed.
7. In support of his case that the plaintiff was not subjected to any ill-treatment at her father-in-law's place, the appellant examined besides himself five other witnesses. Their evidence is of negative character as they have stated that they are not aware of any ill-treatment meted out towards the plaintiff either by her husband or by her mother-in-law. Their evidence was considered at length by the learned Subordinate Judge who found that either they had no means to know what took place in the house of the plaintiff or some of them were so interested in the defendants that much reliance cannot be placed on their testimony. Having perused their evidence I see no reason to differ from the estimate of their credibility made by the learned Subordinate Judge. It is no answer to a charge of cruelty made by the wife for her husband to say that he himself was not guilty of any acts of cruelty but it is his mother who was so guilty. It is now well settled that a wife is entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy.
As was rightly pointed out in M. Ponnambalam V. Saraswathi, (AIR 1957 Mad 693) a husband no doubt has sot the right to choose the domicile for the wife and she should follow him when that domicile is one which is not legitimately repugnant to her and injurious to her health, etc. In all these matters the casting vote is not with the husband or the wife but it is a matter which has got to be decided amicably between them; at times the husband may have to choose between his parents, mother or his wife. He must come to his own conclusion in his own mind and must not insist upon incompatible parties like his own wife and mother living together and making life a hell for them. The learned Judge said:
"Hardships which wives were prepared to endure in the past they are not prepared to endure now and the Court cannot impose upon them ante diluvia requirements of domestic Hindu Households at the present time".
Having regard therefore to the evidence and circumstances discussed above, I hold, in agreement with the trial Court, that the plaintiff has succeeded in establishing that her husband had treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful and injurious for her to live with her husband. Her claim for separate maintenance is therefore fully justified.
8. With regard to the question of quantum of maintenance. Courts have to take into consideration several factors like the status of the family, the earnings and the commitments of the husband and what is required by the wife to maintain herself. In regard to the last requirement. Courts have to steer clear of two extremes, namely, they should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation. They should also steer clear of the other extreme, namely penuriousness.
9. The plaintiff has deposed that her father-in-law had properties worth about two lakhs of rupees and the family is running a shop where silk and clothes are sold. The annual income from the shop according to her is Rs. 14000/- to Rs. 15000/. Besides they possess about 10 acres of land. The appellant while he was in the box did not make any specific statement regarding the income from the cloth shop, but he stated that having taken Rs. 8000/- to Rs. 10,000/- he has relinquished his share in the shop and lands. This statement, however, has not been corroborated. If there was any such relinquishment there must have been a document to evidence it. In the absence of any such document, and any other evidence to corroborate the appellant's testimony, his contention that he has no interest in the family shop and in the family lands must be rejected. At the same tune, the plaintiff's statement that the income from the shop is about Rs. 15,000/- is also not corroborated. D. W. 4 is the nephew of the appellant's father and according to him the income from the appellant's shop is three to four thousand rupees a year. D. W. 6 who is a clerk in the said shop stated that the annual income from the shop is Rs. 4000/-. But his own admission that two clerks each on a salary of Rs. 100/-per month are working in the shop belies the statement that the annual profit from the shop would be only Rs. 4000/-. Admittedly there are accounts of the shop which the appellant has not produced. In the absence of any such clear data, one can only make a rough estimate of the income which having regard to the evidence and circumstances stated above mav be fixed at Rs. 9000/- a year. Besides the appellant, he has sot his brothers who have a share in the shop and the family lands. It has transpired in evidence that during the pendency of the application for restitution of conjugal rights, the plaintiff had been allowed an interim maintenance of Rs. 50/- per month. Taking all these circumstances into consideration and bearing in mind that the plaintiff has no children to support. I feel that a monthly maintenance of Rs. 50/-would be necessary and sufficient for the plaintiff's maintenance.
10. Subject to reduction in the amount of maintenance from Rs. 65/- to Rs. 50/- (Rupees fifty) per month I would affirm the judgment and decree passed by the Subordinate Judge and dismiss this appeal with costs.
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Orissa High Court
Kashinath Sahu vs Smt. Devi And Ors. on 25 February, 1971
1. This is an appeal against the judgment and decree passed by the Subordinate Judge. Berhampur granting to respondent No. 1 maintenance at Rs. 65/- per month against her husband the appellant and creating a charge therefor on the plaint 'A' schedule properties. The appellant and respondent No. 1 were married on 11-3-1953. In the year 1955, she had an attack of filaria while she was residing in the house of her father-in-law at Berhampur. But no steps were taken for her treatment either by her father-in-law or mother-in-law and when her husband wanted to call a doctor, he was prevented from doing so by his mother. Thereafter, much against her will she was sent back to her father's house where she remained for a period of three years during which time nobody from her husband's house made any inquiries about her health nor did they provide any funds for her treatment. On the death of her father-in-law in the year 1958, although nobody from her husband's family came to take her from her father's house at Itamati in Puri District, she with her father voluntarily came to Berhampur to attend the father-in-law's obsequies.A few days thereafter, her mother-in-law did not want her to stay in the house and asked her to go back to her father's house, but on refusal, her husband against her wishes took her to her father's house and left her there. Sometime in Falgun. 1960, she was brought back to her husband's house and was subjected to harassment and physical torture from all the members of the family and was not allowed proper food and clothing and was forced to sleep in a room in the background of the house. Even the servants of the family misbehaved with her and insulted her at the instance of her mother-in-law. As the situation became unbearable she wrote a letter to her father who came and took her away from Berhampur. Thereafter she commenced the suit against her husband (Deft. 1), his brothers (Ds. 2 to 4) and his mother (D. 5). claiming maintenance at Rs. 100/- per month.
2. In the written statement filed by the appellant (D. 1), he denied the plaintiff's allegation that she was ever neglected or ill-treated in her father-in-law's house and contended that there was no cause of action for the plaintiff to claim maintenance. He also disputed the quantum of maintenance stating that he has no share in the family business and that he is maintaining himself by working as a driver on a monthly salary of Rs. 90/-. The other defendants, in addition to denying the plaint allegations regarding cruelty and supporting the case of defendant No. 1 that he had no share in the family business, disputed the plaintiff's right in the event of her setting a decree for maintenance to charge the same on family properties.
3. On a consideration of the oral and documentary evidence on record, the learned Subordinate Judge came to the conclusion that the plaintiff had been neglected, ill-treated and harassed by the defendants including defendant No. 1: that the amount of ill-treatment, harassment and neglect has been such that it was reasonable on the part of the plaintiff to apprehend that it would be harmful and injurious to her to live with defendant No. 1. He therefore, held that she was entitled to get maintenance from her husband. Regarding the quantum of maintenance, he disbelieved the defendant No. 1's case that he had no share in the joint family business; and assessing the profits of the business to be Rupees 12000/- per annum the learned Judge allowed maintenance at Rs. 65/- per month and made it a charge on the plaint 'A' schedule properties. Hence this appeal by defendant No. 1.
4. Prior to the passing of the Hindu Women's Right to Separate Residence and Maintenance Act. 1946, it was held in several cases in Courts that a wife, though normally bound to remain under the roof and protection of the husband, could claim separate residence and maintenance, if she established that, by reason of his misconduct or by his refusal to maintain her in his own place or residence or for other justifying cause, she was compelled to live apart from him. The Act of 1946 gave a statutory recognition to this right and at the same time liberalised the law in certain respects in her favour. The text of Section 2 of the 1946 enactment is substantially the same as Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act. 1956 which has repealed the 1946 enactment. Section 18 of the present Act in so far as it is material runs thus:
"18. (1) Subject to the provisions of this section, a Hindu wife, whether married before 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.- xx xx xx
(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;
XX XX XX XX"
5. The sole question therefore is whether it is established by the plaintiff that she was treated with cruelty and whether the treatment was such as to cause reasonable apprehension in her mind that it would be harmful or injurious to live with her husband. Cruelty need not always be physical in the sense that the plaintiff was tortured or assaulted by any member of the family. In determining what constitutes cruelty regard must be had to the circumstances of each particular case keeping in view the physical and mental condition of the parties and their character and social status. Any conduct of the husband which causes disgrace to the wife or subjects her to a course of annoyance and indignity amounts to legal cruelty. The harm apprehended by the wife may be mental suffering as distinct from bodily harm, because pain of mind may be even more severe than bodily pain and a husband disposed to evil, may create more misery in a sensitive and affectionate wife by a course of conduct addressed only to the mind, than if, in fits of anger, he were to inflict occasional blows upon her person.
6. The evidence in this case has to be judged by bearing the above principles in mind. The plaintiff during her examination in Court deposed about the allegations she had made in her plaint and proved certain letters which she had on several occasions written to her father and some letters which her husband had written to her father. True it is that no other witness has been examined to corroborate her testimony. But here again it has to be remembered that the incidents about which she has deposed are those which had taken place inside the house and except the inmates thereof and the servants of the family, there is not much chance of outsiders knowing anything about these. Even if any of the neighbours of her father-in-law's family had any knowledge about the occurrence, it is highly unlikely that they would come forward to depose in her favour and against the defendants, especially when she is more or less a stranger in the sense that she belongs to a village in Puri district and had been married in the family of a business man of Berhampur who is likely to be an influential person of the locality.
The plaintiff's oral testimony however receives sufficient corroboration from letters written about the time when the incidents are alleged to have taken place -- some by her to her father and others by her husband. The earliest letter is in Ext. 1 dated 11-6-1955 written by the appellant himself to his father-in-law at Itamati wherein he stated that there was some trouble in the family over the medical treatment of the plaintiff and requested his father-in-law to take his daughter for proper treatment. He specifically mentioned therein that there was quarrel in his family for about 8 to 10 days when he proposed for medical treatment of the plaintiff and unless the plaintiff was immediately taken to her father's house, her life would be ruined.
The next letter in point of time is Ext. 4 which the plaintiff wrote to her father in September. 1955 wherein she stated that there was no improvement in her condition, that no medical treatment was arranged for her and she was living in her father-in-law's house at Berhampur with much difficulty. She requested her father to take her as soon as possible. Ext. 2 is a letter dated 7-4-1958 written by the appellant from Rourkela to his father-in-law at Itamati. This appears to be in reply to a letter which the plaintiff's father had written to the appellant seeking the latter's advice about sending the plaintiff to her father-in-law's house. The appellant stated in this letter that if the plaintiff would be sent to his house at Berhampur, he should not be blamed for the misbehaviour of his mother. This statement clearly supports the plaintiff's statement that her mother-in-law used to ill-treat her during her stay at Berhampur.
It has already been stated that sometime in the year 1958, the plaintiff voluntarily went to her father-in-law's house on hearing about the death of her father-in-law. While she was staying at Berhampur thereafter, she was alleged to have been assaulted and ill-treated by her mother-in-law. This is borne out by her letter Ext. 5 of May, 1960 written to her father wherein she stated that she was beaten by her mother-in-law as a result of which there was bleeding from her mouth and that her mother-in-law was also persuading her son the appellant that he should discard the plaintiff and marry another girl. In the last letter Ext. 6 written shortly thereafter by the that her mother-in-law and her sisters-in-law were ill-treating her had assaulted her four times and had taken her near the well threatening to drown her therein that she was not being allowed food and that they had even gone to the extent of locking up the door of the latrine to prevent her from using it. It is after the receipt of this letter that her father came to Berhampur and took her away from the appellant's house. The genuineness of these letters has not been disputed.
It may be stated here that before the institution of the present suit, the appel-lan had filed an application under Section 9 of the Hindu Marriage Act against his wife for restitution of coniugal rights and all these letters had been produced in that proceeding. On a consideration of these letters and the evidence given by the wife in that case, the Additional District Judge had come to the conclusion that the wife had been subiected to cruel treatment by the husband and his mother and sisters and that the treatment meted out to her was sufficient to create an apprehension in her mind that it would be harmful and injurious for her to live with her husband. In this view of the matter, the application for restitution of coniugal rights had been dismissed.
7. In support of his case that the plaintiff was not subjected to any ill-treatment at her father-in-law's place, the appellant examined besides himself five other witnesses. Their evidence is of negative character as they have stated that they are not aware of any ill-treatment meted out towards the plaintiff either by her husband or by her mother-in-law. Their evidence was considered at length by the learned Subordinate Judge who found that either they had no means to know what took place in the house of the plaintiff or some of them were so interested in the defendants that much reliance cannot be placed on their testimony. Having perused their evidence I see no reason to differ from the estimate of their credibility made by the learned Subordinate Judge. It is no answer to a charge of cruelty made by the wife for her husband to say that he himself was not guilty of any acts of cruelty but it is his mother who was so guilty. It is now well settled that a wife is entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy.
As was rightly pointed out in M. Ponnambalam V. Saraswathi, (AIR 1957 Mad 693) a husband no doubt has sot the right to choose the domicile for the wife and she should follow him when that domicile is one which is not legitimately repugnant to her and injurious to her health, etc. In all these matters the casting vote is not with the husband or the wife but it is a matter which has got to be decided amicably between them; at times the husband may have to choose between his parents, mother or his wife. He must come to his own conclusion in his own mind and must not insist upon incompatible parties like his own wife and mother living together and making life a hell for them. The learned Judge said:
"Hardships which wives were prepared to endure in the past they are not prepared to endure now and the Court cannot impose upon them ante diluvia requirements of domestic Hindu Households at the present time".
Having regard therefore to the evidence and circumstances discussed above, I hold, in agreement with the trial Court, that the plaintiff has succeeded in establishing that her husband had treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful and injurious for her to live with her husband. Her claim for separate maintenance is therefore fully justified.
8. With regard to the question of quantum of maintenance. Courts have to take into consideration several factors like the status of the family, the earnings and the commitments of the husband and what is required by the wife to maintain herself. In regard to the last requirement. Courts have to steer clear of two extremes, namely, they should not give maintenance to the wife which would keep her in luxury and would make judicial separation profitable and also impede any future chances of reconciliation. They should also steer clear of the other extreme, namely penuriousness.
9. The plaintiff has deposed that her father-in-law had properties worth about two lakhs of rupees and the family is running a shop where silk and clothes are sold. The annual income from the shop according to her is Rs. 14000/- to Rs. 15000/. Besides they possess about 10 acres of land. The appellant while he was in the box did not make any specific statement regarding the income from the cloth shop, but he stated that having taken Rs. 8000/- to Rs. 10,000/- he has relinquished his share in the shop and lands. This statement, however, has not been corroborated. If there was any such relinquishment there must have been a document to evidence it. In the absence of any such document, and any other evidence to corroborate the appellant's testimony, his contention that he has no interest in the family shop and in the family lands must be rejected. At the same tune, the plaintiff's statement that the income from the shop is about Rs. 15,000/- is also not corroborated. D. W. 4 is the nephew of the appellant's father and according to him the income from the appellant's shop is three to four thousand rupees a year. D. W. 6 who is a clerk in the said shop stated that the annual income from the shop is Rs. 4000/-. But his own admission that two clerks each on a salary of Rs. 100/-per month are working in the shop belies the statement that the annual profit from the shop would be only Rs. 4000/-. Admittedly there are accounts of the shop which the appellant has not produced. In the absence of any such clear data, one can only make a rough estimate of the income which having regard to the evidence and circumstances stated above mav be fixed at Rs. 9000/- a year. Besides the appellant, he has sot his brothers who have a share in the shop and the family lands. It has transpired in evidence that during the pendency of the application for restitution of conjugal rights, the plaintiff had been allowed an interim maintenance of Rs. 50/- per month. Taking all these circumstances into consideration and bearing in mind that the plaintiff has no children to support. I feel that a monthly maintenance of Rs. 50/-would be necessary and sufficient for the plaintiff's maintenance.
10. Subject to reduction in the amount of maintenance from Rs. 65/- to Rs. 50/- (Rupees fifty) per month I would affirm the judgment and decree passed by the Subordinate Judge and dismiss this appeal with costs.
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