Maintenance denied

Chennai High Court
Kumaresan vs Aswathi on 21/6/2002

ORDER

A.S. Venkatachalamoorthy, J.

1. Petitioner herein, who is the husband of the respondent herein, filed a
petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 as H.M.C.O.P.54 of 1999 on the file of Sub Court, Trichy, praying the Court to issue an order in his favour by dissolving the marriage between him and the respondent, solemnized on 3.6.1982 at Neelakanda Swami Koil, Padmanabhapuram, Thakkalai, Nagercoil,according to Hindu custom and rites prevailing in the community. The respondent herein resisted the said petition on various grounds and the petition is now pending. While so, respondent herein filed two applications viz., (a) I.A.274 of
1999 praying the Court to direct the petitioner herein/husband to pay the
respondent/wife a sum of Rs.500/- per month towards alimony pendente lite, and (b) I.A.275 of 1999 praying the Court to direct the petitioner herein/husband to pay the respondent/wife a sum of Rs.5,000/- towards litigation fees. Petitioner herein resisted both the petitions. The said applications were disposed of by the trial Court by two separate orders dated 24.8.2001. Being aggrieved by the said orders, present revision petitions are filed by the petitioner/husband.

2. In the affidavit filed in support of the applications, respondent has
stated that the petitioner is an employee of BHEL, Trichy and getting a regular
and fabulous income of Rs.60,000/- per annum and that taking into consideration
the claims made by her are quite reasonable, those applications may be ordered.

3. The petitioner herein resisted those applications contending that the
respondent has no right to claim alimony and litigation expenses from the
petitioner/husband since respondent is employed in Kadhi Craft at ‘B’ Sector
Shopping Centre, Township, BHEL, Trichy and that she is earning a sum of
Rs.4,500/- per month as salary, besides bonus amount paid by Kadi Craft.

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4. The learned Subordinate Judge, who considered the respective claim of the
parties, passed the order awarding a sum of Rs.500/- per month towards alimony
and a sum of Rs.500/- towards litigation expenses for the respondent/wife.

5. The learned counsel appearing for the petitioner/husband contended that
the respondent gave birth to two children through the petitioner/husband in the
years 1983 and 1985 respectively and that now the petitioner alone is
maintaining those children, meeting their expenses. The learned counsel also
placed before this Court a xerox copy of the proceedings of the Tamilnadu Kadhi
Village Industries Board dated 23.8.1993 and submitted that in fact the
respondent is employed in Kadhi Board and drawing a salary of Rs.4,500/- per
month. In fact, such an averment has been made in paragraph 5 of the counter
affidavit filed in I.A.274 of 1999, but the petitioner failed to substantiate
the same.

6. The learned counsel Mr. A. Muthukumar, who has been appointed by this
Court as Amicus Curiae to defend the respondent/wife, since she is absent even
after receiving Court notice, would contend that inasmuch as the document is a
xerox copy that cannot be looked into and that further nothing prevented the
petitioner to examine the concerned official from the office in which the
respondent is alleged to be working.

7. This Court perused the materials available on record. The petitioner has
in fact, in paragraph 6 of the affidavit filed in support of I.A.275 of 1999,
has categorically stated that the respondent is working in Kadhi Board and
drawing a salary of Rs.4,500/- per month. Normally speaking, he could have
summoned the concerned official from that department, who would have placed
before the Court the required materials. It is not known as to why the
respondent/wife, even after receiving notice from the Court, has not turned out.
In the circumstances of this case, this Court feels that it might be that she
has not appeared before the Court so that, she can avoid divulging about her
employment in Kadhi Board to this Court. In fact, in the revision petition also
petitioner has raised a specific ground that the respondent is employed in Kadhi
Board. Even though, normally this Court will not come to the rescue of the
litigant who failed to reasonably prosecute the matter, that is to say in this
case, marking appointment order or salary certificate or summoning the concerned
official from the Kadhi Board, this Court in the peculiar facts and
circumstances of the case is inclined to give one more chance to the
petitioner/husband to prove his claim viz., the respondent/wife is employed in
Kadhi Board, BHEL, Trichy.

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8. This Court is inclined to give one more opportunity to the petitioner by
remitting the matter since if petitioner is ultimately able to prove that the
respondent is drawing a sum of Rs.4,500/- the court may not be inclined to award
any amount towards alimony or litigation expenses. In this context, it is
absolutely necessary to refer to the relevant provision in the Hindu Marriage
Act (i.e.) Section 24, which reads as under,

“Where in any proceedings under this Act it appears to the Court that
either the wife or the husband, as the case may be, has no independent income
sufficient for her or his support and the necessary expenses of the proceeding,
it may, on the application of the wife or the husband, order the respondent to
pay to the petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner’s own income and the
income of the respondent, it may seem to the court to be reasonable.”

A plain reading of the above provision would show that the only condition
required for grant of maintenance pendente lite is the party should not have
sufficient independent income for her/his support. If it is found that the
applicant has sufficient income for his/her support, no amount can be allowed as
maintenance pendente lite as per section 24 of the Act. But of course, if it is
found that the applicant has no sufficient independent income for his/her support, such application can be considered and suitable maintenance amount can be awarded pendente lite.

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9. In this view of the matter, the impugned orders in I.A.274 and 275 of 1999 in H.M.C.O.P.No.54 of 1999 are set aside. The matter is remitted back to the trial Court for fresh disposal. It is open to both parties to let in oral and documentary evidence. Consequently, C.M.P.Nos.22023 and 22024 of 2001 are closed.

10. This Court place on record the valuable service rendered by Mr. A.Muthukumar, Amicus Curiae, appointed by this Court.

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