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S.Robinson vs V.Sindhia on 5 July, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05.07.2018

CORAM

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

C.R.P.(MD)(PD) No.1786 of 2016
and
CMP(MD)Nos.8602 8603 of 2016

S.Robinson .. Petitioner

vs

V.Sindhia .. Respondent

Revision filed under Article 227 of Constitution of India against the
order dated 27.06.2016 passed in I.A.No.175 of 2015 in D.O.P.No.453 of 2014
on the file of the District Judge, Kanyakumari District at Nagercoil.

!For Petitioner : Mr.G.Aravinthan

^For Respondent : M/s.V.Viswatha

:ORDER

This revision is directed against the order dated 27.06.2016 passed in
I.A.No.175 of 2015 in D.O.P.No.453 of 2014 on the file of the learned
District Judge, Kanyakumari District @ Nagercoil directing the petitioner
herein to pay a sum of Rs.8,000/- per month as interim alimony to the
respondent from the date of filing of the petition till the date of order and
also to pay a sum of Rs.10,000/- as litigation expenses, failing which the
main petition will stand dismissed.

2. The petitioner and the respondent are husband and wife. The husband
filed the main O.P. under Section 10(1)(x) of the Indian Divorce Act, 1869
seeking for dissolution of the marriage solemnized on 22.10.2001 at C.S.I.
Church, Azhagiyamandapam.

3. Pending main O.P., the wife filed I.A.No.175 of 2015 under Section
36 of the Indian Divorce Act, seeking interim maintenance of Rs.15,000/- per
month and Rs.10,000/- towards expenses of the proceedings alleging that both
the petitioner and the respondent lived as husband and wife till 03.04.2015
at various places and at last they resided at Bangalore in their own house.
Thereafter, there were some quarrels between them. On 03.04.2015, when her
husband attempted to kill her by strangulation, the wife escaped and now she
is living with her parental home. According to the wife, her husband was
working as a Team Leader at Saplabs Company, Bangalore and was drawing salary
of Rs.1,15,000/- per month and he has means to pay the interim maintenance as
prayed for by her.

4. Resisting the petition, the husband filed counter stating that in
fact, his wife often quarrelled with him. It is stated that he had purchased
a flat by availing loan of Rs.35,70,000/- from LIC HFL with the help of his
parents and also borrowed money from his relatives/friends. His wife did not
get any money from her parents. It is stated that he was not a Team Leader
as alleged by his wife and he was just a software developer. Though, he was
earning Rs.71,469/-, he has other liabilities of Rs.68,124/- to be borne by
him. Apart from the above liabilities, he has to spend more than Rs.20,000/-
towards books and uniforms for the children every year. It is also stated
that his wife was well educated and trained to work in school and she had
worked as teacher in Prajval Vidyaniketan School. Since the respondent was a
qualified and capable of earning livelihood, she was not entitled to get
maintenance as claimed by her.

5. Upon consideration of the rival submissions, the learned District
Judge, allowed the petition directing the husband to pay a sum of Rs.8,000/-
per month as interim alimony to the wife and also to pay a sum of Rs.10,000/-
towards litigation expenses. Aggrieved by the same, the husband preferred
this Civil Revision Petition.

6. I heard Mr.G.Aravinthan, learned counsel appearing for the
husband/petitioner and M/s.V.Viswatha, learned counsel appearing for the
wife/respondent and also perused the materials available on record.

7. The learned counsel for the petitioner submitted that the learned
District Judge has mechanically passed the order without taking into account
amounts available with the petitioner and such a mechanical consideration of
the subject matter in issue has totally prejudiced the petitioner. He
submitted that the respondent not only deserted the petitioner, but also the
two minor daughters left with the petitioner, which clearly speaks volumes of
act of cruelty committed by the respondent. He submitted that out of the
monthly earnings, the petitioner has to take care of her two minor daughters
and learned District Judge has arbitrarily fixed the interim maintenance of
Rs.8,000/- per month and also Rs.10,000/- towards litigation expenses.

8. Per contra, the learned counsel appearing for the respondent/wife
submitted that the quantum of interim maintenance awarded by the learned
District Judge, in fact, is on the lower side. Anyhow considering the
submissions put forth on either side, the learned District Judge awarded
Rs.8,000/- per month and the same need not be interfered with. She argued
that Rs.10,000/- awarded towards litigation expenses is reasonable. In
support of her submissions, the learned counsel cited the following
decisions:

(1)Hirachand Srinivas Managaonkar v. Sunanda, reported in CDJ 2001 SC 188.
(2)Sujit Kumar v. Vandana (MAT.APP (F.C) 35 of 015, dated 8.8.2016 (Delhi
High Court)
(3)Manish Jain v. Akanksha Jain (Civil Appeal No.4615 of 2017, dated
30.3.2017.

9. The short question that falling for consideration is whether learned
District Judge was right in directing the petitioner herein to pay a sum of
Rs.8,000/- per month as interim maintenance and also litigation expenses of
Rs.10,000/- to the respondent.

10. 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
falling for consideration is whether the respondent/wife is entitled to
maintenance pending main O.P. and whether the amount of Rs.8,000/- awarded by
the learned District Judge is on the higher side.

11. In Manish Jain v. Akanksha Jain, supra, 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.?

12. The learned counsel for the petitioner submitted that the
respondent was well educated and trained to work in schools. In fact she was
working as a teacher in Prajval Vidyaniketan School and she is a qualified
and capable of earning livelihood and hence, she is not entitled to
maintenance as claimed. The submission of the learned counsel for the
petitioner cannot be countenanced.

13. 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.

14. 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.?

15. In the case on hand, it is not the case of the petitioner that the
respondent/wife is still working as teacher and was earning considerable
amount as salary. Merely because wife is a qualified teacher, it would not
be sufficient to hold that she is in a position to maintain herself and that
in any event, merely because the wife was earning something, it would not be
a ground to reject her claim for maintenance.

16. As far as the amount of interim maintenance as sought for and
awarded by the learned District Judge is concerned, the paying capacity of
the petitioner/husband is required to be looked into.

17. According to the respondent/wife, the petitioner was earning
Rs.1,15,000/- per month by working as Team Leader in Saplabs Company at
Bangalore.

18. According to the petitioner, he was working as a software developer
and was earning Rs.71,469/-. Though he was drawing a sum of Rs.71,469/-, he
has to bear a sum of Rs.68,124/- per month as his liabilities, apart from
Rs.20,000/- towards books and uniforms for the children every year.
Admittedly, nothing has been produced by the petitioner/husband to show that
he is incurring liabilities of Rs.68,124/- per month.

19. As per his version, the petitioner was drawing a salary of
Rs.71,469/- by working as software developer. The said statement of the
petitioner was made in the year 2015. Obviously, his present salary must be
more than the above figure. Therefore, keeping in view his paying capacity,
the learned District Judge has directed the petitioner/husband to pay a sum
of Rs.8,000/- per month as interim alimony, which according to me, is a
reasonable amount and no interference is warranted.

20. Coming to the litigation expenses awarded by the learned District
Judge is concerned, 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 me is reasonable
and there is no need to interfere with the same.

21. It appears that by an order dated 08.09.2016 in C.M.P.(MD)Nos.8602
and 8603 of 2016, this Court while granting interim order of stay of
operation of all further proceedings in D.O.P.No.453 of 2014 and I.A.No.175
of 2015, directed the petitioner to pay a sum of Rs.5,000/- per month instead
of Rs.8,000/- per month to the respondent as interim alimony on or before 5th
day of every succeeding English calendar month commencing from October 2016
and also to pay a sum of Rs.10,000/- as litigation expenses. The petitioner
has not appealed against the said order and the said order was still in
operation.

22. In the result, the Civil Revision Petition is dismissed. The
petitioner shall continue to pay a sum of Rs.8,000/- per month as interim
alimony on or before 5th of every English calendar month till the disposal of
the main O.P. If the petitioner/husband has paid or deposited any amount of
maintenance pursuant to the interim order of this Court dated 08.09.2016, the
same shall be set-off against the arrears to be paid by the
petitioner/husband. The respondent/wife is at liberty to withdraw the
amount, if any, deposited by the petitioner/husband pursuant to the order
dated 08.09.2016. It is made clear that this Court has not expressed any
opinion on the merits of the matter. Since the main O.P. is of the year
2016, we request the learned District Judge to expedite the trial of the main
O.P. as early as possible, preferably within a period of six months from the
date of receipt of a copy of this order. No costs. Consequently, connected
miscellaneous petitions are closed.

To

The District Judge,
Kanyakumari District @ Nagercoil.

.

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