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Arul Xavier vs Rose Antony Joice on 2 August, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02.08.2018

RESERVED ON : 12.04.2018

DELIVERED ON : 02.08.2018

CORAM

THE HON’BLE MR. JUSTICE M.V.MURALIDARAN

C.R.P.(MD)(PD) No.1693 of 2016
and
CMP(MD)No.8246 of 2016

Arul Xavier .. Petitioner

vs

Rose Antony Joice .. Respondent

Prayer: Revision filed under Article 227 of Constitution of India against the
order dated 04.07.2016 passed in I.A.No.44 of 2012 in I.D.O.P.No.197 of 2011
on the file of the District Judge, Kanyakumari District @ Nagercoil.

!For Petitioner
:
Mr.D.Saravanan

^For Respondent
:
Mr.S.R.Anbarasu

:ORDER

Challenging the order dated 04.07.2016 passed in I.A.No.44 of 2012 in
I.D.O.P.No.197 of 2011 on the file of the learned District Judge, Kanyakumari
District @ Nagercoil, the petitioner has filed this Civil Revision Petition.

2. The petitioner has filed I.D.O.P.No.197 of 2011 to dissolve the
marriage between the petitioner and the respondent. Resisting the I.D.O.P.,
the respondent filed counter.

3. Pending I.D.O.P., the respondent filed I.A.No.44 of 2012 seeking
interim maintenance of Rs.50,000/- to her as alimony pendente lite and
Rs.10,000/- towards litigation expenses alleging that the petitioner has
failed to perform his matrimonial obligations and failed to pay necessary
living expenses and made the respondent and her two children to stay without
any cause. Since the respondent has no employment, she filed suit in
O.S.No.19 of 2004 against the petitioner and the said suit was decreed on
05.01.2005. As against the decree in O.S.No.19 of 2004, the petitioner has
filed appeal with delay condonation petition. Though the delay condonation
petition was allowed with terms, till date the appeal has not been numbered.
It is alleged that despite having sufficient income, the petitioner has
failed to maintain the respondent and her children. According to the
respondent, the petitioner was earning more than Rs.1,00,000/- per month from
the yield of the property owned by him and in fact, there was a maintenance
arrears of Rs.7,88,500/- as per the decree in O.S.No.19 of 2004. Therefore,
the respondent sought interim maintenance of Rs.50,000/- till the disposal of
the main petition.

4. Resisting the petition, the petitioner filed counter stating that
only to harass her, the respondent has filed the petition. It is stated that
the petitioner lost his job from Railway department and thereafter he is in
starvation. He was affected with so many ailments and he was suffering from
Cancer and till date, he was continuing his treatment. The respondent, nor
the children ever enquired about his health condition. The petitioner was not
having any separate property nor any income and in fact, he was living with
mercy of his relatives. It is stated that the respondent was having surplus
jewels, properties and cash and in hand. She owned properties in
S.Nos.781/12, 781/16 of Eraniel village and in 68/7 of Villukury village and
various other properties, house and bank deposits. On the other hand, the
petitioner has no properties on his own and no income or job and unable to
carry any works due to his illness.

5. Upon consideration of the rival submissions, the trial Court partly
allowed the petition directing the petitioner to pay a sum of Rs.20,000/- per
month as interim alimony to the respondent from the date of filing of the
main O.P. and Rs.10,000/- as litigation expenses. Aggrieved by the same, the
petitioner has filed this Civil Revision Petition.

6. I heard Mr.D.Saravanan, learned counsel for the petitioner and
Mr.S.R.Anbarasu, learned counsel for the respondent and also perused the
materials available on record.

7. The learned counsel for the petitioner submitted that the trial
Court failed to note that the petitioner was unemployed and was aged 57
years. The petitioner is taking treatment for the past seven years for
throat cancer and nobody was there to look after him. He submitted that the
trial Court without considering the plight of the petitioner, awarded
Rs.20,000/- as interim alimony and Rs.10,000/- as litigation expenses, which
are highly arbitrary and prejudicial and out to have been set aside.

8. Per contra, the learned counsel for the respondent submitted that
the trial Court having found the capacity of the petitioner, awarded
Rs.20,000/- towards interim maintenance. He would submit that the
petitioner has sufficient means to pay the interim maintenance awarded by the
trial Court and there is no need to interfere with the same.

9. While partly allowing the petition filed by the respondent for
interim maintenance, the trial Court observed that until divorce is granted
by the matrimonial Court, the petitioner is duty bound to pay maintenance as
well as costs of the litigation. Placing reliance upon the decision in
Harichand Srinivas Managaonkar v. Sunanda, reported in CDJ 2001 SC 188, the
trial Court held that if the husband is the petitioner in the matrimonial
dispute either for restitution of conjugal rights or for divorce, he shall
not be allowed to prosecute the case, if he refuses interim alimony and
therefore, the trial Court cannot deny the statutory claim of maintenance to
the respondent and accordingly, directed the petitioner to pay Rs.20,000/-
per month as interim maintenance.

10. The short question that falls for consideration is whether trial
Court was right in directing the petitioner to pay a sum of Rs.20,000/- per
month as interim maintenance and also litigation expenses of Rs.10,000/- to
the respondent.

11. This Court is not inclined to go into the merits of the rival
contentions advanced by the parties in the main O.P. The only question that
arises for consideration is whether the respondent is entitled to maintenance
pending main O.P. and whether the amount of Rs.20,000/- awarded by the trial
Court is on the higher side.

12. In an unreported judgment in Civil Appeal No.4615 of 2017, dated
30.03.2017 (Manish Jain v. Akanksha Jain), the Hon’ble Supreme Court held as
under:

?15. An order for maintenance pendente lite or for costs of the proceedings
is conditional on the circumstance that the wife or husband who makes a claim
for the same has no independent income sufficient for her or his support or
to meet the necessary expenses of the proceeding. It is no answer to a claim
of maintenance that the wife is educated and could support herself. Like
wise, the financial position of the wife’s parents is also immaterial. The
Court must take into consideration the status of the parties and the capacity
of the spouse to pay maintenance and whether the applicant has any
independent income sufficient for her or his support. Maintenance is always
dependent upon factual situation, the Court should, therefore, mould the
claim for maintenance determining the quantum based on various factors
brought before the Court.?

13. The learned counsel for the petitioner argued that the respondent
is having sufficient means to maintain herself and since the petitioner was a
cancer patient and was continuing his treatment by spending huge amount, he
is not in a position to pay the maintenance as awarded by the Tribunal. The
learned counsel further argued that in fact, the petitioner is living with
the mercy of his relatives.

14. Section 24 of the Hindu Marriage Act empowers the Court in any
proceeding under the Act, if 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 any one of them order the other party to pay to the petitioner
the expenses of the proceeding and monthly maintenance as may seem to be
reasonable during the proceeding, having regard to also the income of both
the petitioner and the respondent.

15. In an unreported judgment in Shailja and another v. Khobbanna
(Criminal Appeal Nos.125-126 of 2017, dated 18.1.2017), the Hon’ble Supreme
Court observed as under:

?whether the wife is capable of earning or whether she is actually earning
are two different requirements and merely because she is capable of earning
is not a sufficient reason to reduce the maintenance awarded by the Family
Court.?

16. In the case on hand, it is not the case of the petitioner that the
respondent was working and was earning considerable amount as salary. The
allegation that the respondent is owning properties would not be sufficient
to hold that she is in a position to maintain herself. An order for
maintenance pendente lite of the proceedings is conditional on the
circumstance that the wife who makes a claim has no independent income.

17. As far as the amount of interim maintenance as sought for and
awarded by the trial Court is concerned, the paying capacity of the
petitioner is required to be looked into.

18. According to the respondent, the petitioner was earning
Rs.1,00,000/- per month from the yield of the property owned by him and is a
rich person. Though the same was denied by the petitioner, nothing has been
produced by the petitioner.

19. It is to be noted that the respondent had filed O.S.No.19 of 2004
for maintenance and the same was decreed. According to the respondent, there
was a maintenance arrears of Rs.7,88,500/- and the petitioner is neglecting
to provide maintenance, which fact was not denied by the petitioner.

20. Keeping in view the paying capacity of the petitioner, the trial
Court had directed the petitioner to pay a sum of Rs.20,000/- per month as
interim alimony, which according to me, is a reasonable amount and no
interference is warranted.

21. Coming to the litigation expenses awarded by the learned District
Judge, Section 24 of the Hindu Marriage Act stipulates the other party to pay
to the petitioner the expenses of the proceedings. In the case on hand, the
learned District Judge awarded Rs.10,000/- towards litigation expenses to be
paid by the petitioner, which, according to this Court, is reasonable and
there is no need to interfere with the same. No valid grounds have been
made out to interfere with the order of the trial Court and therefore, the
Civil Revision Petition is liable to be dismissed.

22. In the result, the Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.

To

The District Judge,
Kanyakumari District @ Nagercoil.

.

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