Before The Madurai Bench Of Madras … vs S.Saraswathy on 27 July, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27.07.2017

Date of Reserving the Order
Date of Pronouncing the Order
24.07.2017
27.07.2017

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN

C.R.P.(NPD) (MD) No.746 of 2006
and
M.P.(MD) No.1 of 2006

B.Vijayakumar … Petitioner

-vs-

S.Saraswathy … Respondent

PRAYER: Civil Revision Petition is filed, under Article 227 of the
Constitution of India, to call for the records relating to the order and
decreetal order, dated 07.04.2006, passed by the Additional Subordinate
Judge, Thanjavur, in I.A.No.276 of 2005 in H.M.O.P.No.8 of 2005 and set aside
the same.

!For Petitioner : Mr.B.Jameel Arasu

^For Respondent : Mr.M.P.Senthil

:ORDER

Impugning the fair and decreetal orders, dated 07.04.2006, passed in
I.A.No.276 of 2005 in H.M.O.P.No.8 of 2005, on the file of the Additional
Subordinate Judge, Thanjavur, the civil revision petition has been preferred
invoking Article 227 of the Constitution of India.

2. I.A.No.276 of 2005 has been preferred by the respondent herein under
Section 25 of the Hindu Marriage Act, 1955 for an order awarding
Rs.5,00,000/- as permanent alimony and maintenance as agreed by the revision
petitioner in the joint memo of compromise, dated 24.03.2005, filed before
the Court and directing him and his men to discharge the fixed deposit
receipt and pay the same to her.

3. As seen from the case of the respondent herein in the above said
application, she has preferred a petition for divorce against the revision
petitioner and as the revision petitioner had agreed for compromise to get
divorce, the terms of the compromise were reduced into writing and as per the
terms of the said compromise, the revision petitioner has to pay a sum of
Rs.5,00,000/- in lump sum towards the future maintenance of the respondent
and it is also found that the amount was deposited in the Bank in the name of
two persons and it was mutually agreed that after the order of divorce, the
amount deposited in the Bank should be appropriated with all interest by the
respondent herein. Accordingly, it is the case of the respondent herein that
the marriage between her and the revision petitioner had been dissolved on
24.03.2005 and when she had approached the revision petitioner to discharge
the fixed deposit and pay the said lump sum of Rs.5,00,000/- towards her
future maintenance, it is stated that on some pretext or the other, the
revision petitioner is avoiding the payment and inasmuch as the revision
petitioner herein is liable to pay the amount after discharging the fixed
deposit and inasmuch as the revision petitioner had failed to do so by
honouring the terms of the compromise, she has been necessitated to lay the
application.

4. The above said application preferred by the respondent herein was resisted
by the revision petitioner on the footing that even before the divorce has
been ordered by the Court, the respondent demanded the entire amount to be
paid to her and inasmuch as one of the joint holders of the Bank deposit was
not available at that point of time, the amount could not be withdrawn and
hence, the revision petitioner’s father had arranged the payment of
Rs.5,00,000/- to the respondent in order to get peace and put an end to the
litigation and paid the amount to her and the respondent, after the receipt
of the entire amount, cannot again seek to claim the amount lying in the Bank
deposit and further according to the revision petitioner, the respondent has
relinquished her right to seek maintenance in the divorce proceedings, which
was also recorded by the Court and in such view of the matter, according to
him, the respondent cannot reopen the issue further and seek future
maintenance once again from the revision petitioner by way of the present
application and further, according to him, the application is not legally
maintainable and hence, it is liable to be dismissed.

5. The above application was taken up for consideration and the Court below,
after noting the fact that under the terms of the compromise filed before the
Court the revision petitioner herein had agreed to pay a lump sum of
Rs.5,00,000/- towards future maintenance to the respondent, finding that even
though the H.M.O.P., had been disposed of, inasmuch as the revision
petitioner had not honoured the terms and conditions of the compromise and
paid the amount as promised by him and also further finding that Section 25
of the Hindu Marriage Act provides for the payment of the permanent alimony
and maintenance at any stage of the matter even after the passing of the
decree in the main proceedings and inasmuch as the revision petitioner herein
despite admitting to pay the amount had not made the payment and on the other
hand claimed to have made the payment through some other mode, for which
there is no material, held that the application preferred by the respondent
herein is maintainable and directed the matter to be posted on 12.04.2006
for adduction of evidence.

6. Challenging the same, it is found that the present civil revision petition
has been preferred.

7. As seen from the materials placed, on the subsequent hearing dates, the
revision petitioner did not participate in the proceedings and accordingly,
the Court below, considering the evidence adduced by the respondent both oral
and documentary, allowed the application preferred by the respondent herein
on 18.04.2006.

8. It is found that the revision petitioner has not challenged the final
order passed by the Court below, dated 18.04.2006, in I.A.No.276 of 2005.
However, he has only challenged the impugned order, dated 07.04.2006 of the
Court below holding that the application preferred by the respondent herein
is legally maintainable.

9. It is not in dispute that the respondent herein has moved a petition
seeking for divorce against the revision petitioner. It is also not in
dispute that the parties have entered into a compromise and pursuant to the
same also filed a Memorandum of Compromise before the Court, wherein the
revision petitioner had agreed to pay a lump sum of Rs.5,00,000/- to the
respondent towards future maintenance. The said amount was deposited in the
Bank in the name of two persons and it was agreed that on the Court passing
order of divorce the respondent is entitled to get the amount. Now,
according to the respondent, inasmuch as the revision petitioner has failed
to honor his commitment and not discharged the fixed deposit, she has been
necessitated to prefer the application seeking for appropriate reliefs.

10. The case of the revision petitioner that even though he had deposited the
amount agreed to be paid towards the respondent’s future maintenance in the
Bank deposit, which has been incorporated in the terms of the compromise and
the respondent had been given liberty to get the amount after order of the
Court allowing the divorce petition, according to him, as the respondent
insisted for the payment of the said sum even before the Court had passed
order of divorce, he had made arrangement to pay the amount through his
father and as the respondent had received the amount, she is not entitled to
seek for the claim of the amount again lying in the Bank deposit and hence,
the application is not legally maintainable.

11. However, as per the contention put forth by the revision petitioner, to
establish that he has paid the said amount of Rs.5,00,000/- to the respondent
even prior to the order of divorce, there is no material forthcoming. Merely
because the respondent in the divorce proceedings had agreed that she has
received the payment cannot be held that she indeed received the payment. As
rightly contended by the respondent’s counsel the said admission is only
given in pursuance of the terms of the compromise entered into between the
parties and filed before the Court on the date of grant of order of divorce
and in such view of the matter, it is found that the contention of the
revision petitioner that the respondent had already received the amount as
such cannot be countenanced. As seen above, there is no reliable material
placed on the part of the revision petitioner that the respondent had already
received the amount agreed to be paid by the revision petitioner towards
future maintenance as incorporated in the terms of compromise.

12. In such view of the matter, it is found that the Court below has rightly
noted that inasmuch as the respondent is entitled to seek maintenance and
permanent alimony even subsequent to the passing of the Decree and further
since the revision petitioner had failed to honour his commitment given under
the terms of compromise filed before the Court, held that the respondent is
entitled to seek for the payment of the said sum by filing necessary
application on account of the failure of the revision petitioner to fulfil
his promise as per the terms of the compromise.

13. Considering the impugned order in its entirety, it is found that the
Court below has rightly held that the application filed by the respondent
herein seeking for permanent alimony and maintenance of Rs.5,00,000/- as
agreed to be paid by the revision petitioner is maintainable and it is
perfect both legally as well as factually and it does not warrant any
interference from this Court.

14. Resultantly, the civil revision petition is dismissed with costs.
Consequently, connected miscellaneous petition is closed.

To:

The Additional Subordinate Judge,
Thanjavur.

.

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