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Padma vs Joseph Packianathan on 30 April, 2019

1

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 30.04.2019
(Reserved on 26.03.2019)

CORAM :

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P(PD)(MD)No.1860 of 2010
and
M.P(MD)No.1 of 2010

Padma … Petitioner

vs.

Joseph Packianathan … Respondent

Petition filed under SectionArticle 227 of the Constitution of India,
against the order dated 09.07.2010 passed by the learned I
Additional District Judge, Tirunelveli, Tirunelveli District in I.A.No.
95 of 2010 in I.D.O.P.No.59 of 2009.

For Petitioners : Mr.R.Anand
For Respondent : Mr.H.Arumugam

ORDER

Against the dismissal of the petition claiming interim

maintenance, the wife has filed this revision.

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2.The facts of the case are that the petitioner and

respondent are husband and wife and the respondent/husband

filed divorce petition. Pending divorce petition, the

petitioner/wife filed a petition seeking interim maintenance and

litigation expenses. The Court below dismissed the said petition,

against which, the petitioner has filed this revision petition.

3.Learned counsel for the petitioner would contend that the

Court below has mechanically dismissed the maintenance petition

holding that the petitioner herself has filed a counter and

expressed her concurrence with regard to the decree of divorce

and therefore the maintenance petition cannot be allowed. As

per Section 36 of Indian Divorce Act, until the decree of divorce,

the wife is entitled for alimony from the husband and there is no

legal impediment and under the said Section, on being satisfied

of the truth of the statements contained in the maintenance

petition, the Court may make such order on the husband for

payment to the wife of alimony pending the suit as it may deem

just. It is further contended that though the petitioner has

stated in the maintenance petition that the respondent is earning

Rs.6,500/- per month as driver in a mineral company and also
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3

Rs.8,000/- from his agricultural land totalling Rs.11,500/- and

she does not possess any employment and income for looking

after her day-to-day expenses, the Court below without

considering the same, has erroneously dismissed the

maintenance petition on the sole reason that the petitioner is also

seeking an order of divorce. Thus, the learned counsel prays for

allowing this revision petition.

4.Learned counsel for the respondent would submit that the

petitioner is living in her parents’ home and she has nanja, punja

lands and house, through which, she is deriving income and the

petitioner alone deserted the respondent and left the matrimonial

home in 2006 without any reason and the respondent is not

having sufficient means. It is further contended that the

averment of the petitioner in her counter to the divorce petition

itself shows that she also seeks an order of divorce and

therefore, the Court below has rightly dismissed the maintenance

petition which does not require interference by this Court.

5.Heard both sides and perused the records.

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6.Perusal of record shows that the Court below has

dismissed the maintenance petition on the only ground that the

petitioner is also seeking an order of divorce which is erroneous.

As per Section 36 of the Indian Divorce Act, in any suit under this

Act, whether it be instituted by a husband or a wife, and whether

or not she has obtained an order of protection, the wife may

present a petition for alimony pending the suit. Such petition

shall be served on the husband; and the Court, on being satisfied

of the truth of the statements therein contained, may make such

order on the husband for payment to the wife of alimony pending

the suit as it may deem just.

7.In Manish Jain vs. Akankssha Jain Civil Appeal No.4615 of

2017 dated 30.03.2017 reported in 2017 15 SCC 801, the

Hon’ble Supreme Court has held as follows:-

”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
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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.”

8.Perusal of record shows that the petitioner has claimed

maintenance stating that she has no wherewithal to maintain her

and the respondent states that he has no means of income. Be that

as it may, it is the bounden duty of the husband to maintain his

wife. Therefore, in view of Section 36 of the Indian Divorce Act and

the above judgment of the Apex Court, the order passed by the

learned Judge dismissing the maintenance petition is liable to be

dismissed.

9.Accordingly, the order dated 09.07.2010 passed by the

learned I Additional District Judge, Tirunelveli, Tirunelveli District in

I.A.No.95 of 2010 in I.D.O.P.No.59 of 2009, is set aside. A sum of

Rs.3,000/- is hereby awarded as maintenance from the date of

petition and a sum of Rs.8,000/- is hereby awarded towards

litigation expenses. The arrears of maintenance from the date of
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maintenance petition till April 2019 shall be paid to the petitioner

within a period of eight wee ks from the date of receipt of a copy of

this order and the respondent shall continue to pay the monthly

maintenance amount at Rs.3,000/- until the disposal of the divorce

petition.

With the above direction, this Civil Revision Petition is allowed.

No costs. Consequently, connected miscellaneous petition is closed.

Index : Yes / No 30.04.2019
Internet : Yes / No

To

The I Additional District Judge,
Tirunelveli,
Tirunelveli District.

http://www.judis.nic.in
7

J.NISHA BANU, J.
bala

Pre-Delivery order made in
C.R.P(PD)(MD)No.1860 of 2010

30.04.2019

http://www.judis.nic.in

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