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1991 DIGILAW 484 (MAD)

C. Krishnan v. Ponmudi

1991-07-17

ABDUL HADI

body1991
Judgment :- This civil revision petition is by the husband who was the respondent in I.A.No.254 of 1990 and the petitioner in H.M.O.P.No.168 of 1989. The H.M.O.P. is for divorce of the respondent-wife on the ground of cruelty and desertion. While the H.M.O.P. was pending, the abovesaid I.A.No.254 of 1990 was filed by the wife under Sec.24 of the Hindu Marriage Act, claiming interim maintenance from the date of the said O.P. at the rate of Rs.750 per month and for litigation expenses to the extent of Rs.1,000. The court below has granted interim maintenance at the rate of Rs.650 per month from the date of O.P. and has also granted the other prayer for litigation expenses as claimed. Against the said order, this civil revision petition has been filed by the husband. 2. After going through the judgment, though I was not inclined to admit the C.R.P. on the specific grounds raised by the petitioner in the memorandum of grounds, the learned counsel for the petitioner submitted before me that the grant of interim maintenance from the said date of the original petition, viz., August, 1989 was bad in law and the court had no power grant maintenance from the date, particularly when the I.A. had been filed in about August, 1990 only. So, I ordered notice of motion on 19.6.1991 and the respondent represented by counsel. He submitted that courts had held in very many cases that the court could grant such interim maintenance from ‘the date of service of summons in the main O.P. In the present case, after verification, it was stated that the summons was served 12.9.1989 though the O.P. was filed in August, 1989. So, the learned counsel for the respondent contended that if at all the impugned order could be modified to the effect that the maintenance ordered could be for the period beginning from 12.9.1989, if not from August, 1989, the date when the main O.P. was filed. 3. On this point he relied on E.K.Raghavan v. K.K.Saroja,A.I.R. 1987 Ker. 151, Smt.Sobhana v. Amar Kanta, A.I.R 1959 Cal. 455, Mahalingam Pillai v. Amsavalli, (1956)2 M.L.J. 289 , Samir Banerjee v. Sujata Banerjee, 70 C.W.N. 633, N.Subramaniyam v. Mrs.M.G. Saraswati, A.I.R 1964 Mys. 38. 4. In the above referred to E.K.Raghavan v. K.K.Saroja, A.I.R. 1987 Ker. 3. On this point he relied on E.K.Raghavan v. K.K.Saroja,A.I.R. 1987 Ker. 151, Smt.Sobhana v. Amar Kanta, A.I.R 1959 Cal. 455, Mahalingam Pillai v. Amsavalli, (1956)2 M.L.J. 289 , Samir Banerjee v. Sujata Banerjee, 70 C.W.N. 633, N.Subramaniyam v. Mrs.M.G. Saraswati, A.I.R 1964 Mys. 38. 4. In the above referred to E.K.Raghavan v. K.K.Saroja, A.I.R. 1987 Ker. 151, the O.P. was filed on 26.3.1980, summons was issued on 9.4.1980, the LA for interim alimony was filed on 24.11.1980 and the alimony was granted from the abovesaid date 9.4.1980. In that context, the learned Judge observed as follows: "The chief point for doubt in this case was with regard to the duration over which the court can order alimony. Relying on a decision reported in Radhakumari v. K.M.KNair, 1982 K.L.T. 417: A.I.R. 1983 Ker. 139, this Court said that there is no legal impediment for the court directing maintenance to be paid by the husband from the date of service of summons main petition even though the petition for interim relief was filed sometime after the filing the main petition." In the above referred to Banerjee v. Sujata Banerjee, 70 C. W.N. 633 also, reliance placed on the above referred to Mahalingam Pillai v. Amsavalli, (1956)2 M.L.J: 289. the decision reported in the above referred to N.Subramaniyan v. Mrs.M.G. Saraswati, 1965 Mys. 38. The learned counsel for the respondent also brought to my notice Prasad v. Meena Devi, A.I.R. 1987 All. 130, where the Allahabad High Court has held such maintenance could be granted from the date of the institution of the original petition. 5. As against these decisions no doubt, the learned counsel for the petitioner relied BhanwarLal v. Kamala Devi, A.I.R. 1983 Raj 229, wherein I find the following observation: "With regard to the period for which the interim maintenance amount should be awarded, some courts have taken the view that the respondent spouse is entitled to get interim maintenance from the date on which the of the main petition is effected upon the respondent. But in my view the interim maintenance should be awarded to the indigent spouse from the date when the application under of the Act is actually moved. But in my view the interim maintenance should be awarded to the indigent spouse from the date when the application under of the Act is actually moved. There may be cases where the respondent may not justifiable need of interim maintenance during the earlier stages of the matrimonial litigation or may unduly delay the filing of an application under Sec.24 for the interim maintenance several years after the filing of the main petition and in all such cases it would not be to award a lump sum amount to the respondent spouse, who has neglected to application under Sec.24 of the Act soon after the service is effected upon her of the of the main petition." 6. In view of the decisions of several High Courts including this Court, I am not inclined agree with the view taken by the Rajasthan Court in the above referred to Bhanwar Kamala Devi, A.I.R. 1983 Raj. 229 and would prefer to take the view taken in the referred to E.K.Raghavan v. K.K.Saroja, A.I.R 1987 Ker. 151 and Mahalingam Pillai Amsavalli, (1956)2 M.L.J. 289 . 7. No doubt in the above referred to Bhanwar Lal v. Kamala Devi, A.I.R. 1983 Raj. the passage above quoted it is stated that there may be cases where the spouse may in justifiable need of interim maintenance during the earlier stages of the matrimonial litigation and may unduly delay the filing of application under Sec.24. Further, the counsel for the petitioner also stressed the point that in the present case, the LA was more than ten months after the summons was served in the main O.P. But, I do not that this can be considered as a very long delay. That apart, in the affidavit in support LA, the wife states that three years after the marriage (which took place in 1953), she driven out of the house. After stating so in paragraph 5 of the affidavit, she says as follows: "I state that from that onwards I am suffering without food and proper dress, I have means to maintain myself. In spite of several pan-chayats and mediators the respondent refused to take back unless dowry demand is complied with." As against this allegation. After stating so in paragraph 5 of the affidavit, she says as follows: "I state that from that onwards I am suffering without food and proper dress, I have means to maintain myself. In spite of several pan-chayats and mediators the respondent refused to take back unless dowry demand is complied with." As against this allegation. I only find a general and vague denial in the counter statement filed by the husband as follows: "The petitioner has means to defend the case and also to maintain herself." So, it cannot also be said that the wife was having means earlier to the filing of the said in the light of the abovesaid allegations in the affidavit and counter, as stated above, also been observed in the above referred to Smt. Sobhana Sen v. Amar Kanta, A.I.R. Cal. 455 at 457, as follows: "It is well-known that orders for maintenance are passed even at a very late stage proceedings." 8. Regarding the quantum of maintenance, the learned Counsel for the petitioner that it is excessive. But the court below has come to the conclusion that the husband Rs.2,500 per month as income. Further, admittedly apart from the petitioner-husband a salaried employee, he is also owning lands, where several crops are cultivated and is earned therefrom. The court below points out the evidence given by P.W.2, the Administrative Officer regarding the extent of the land owned by him and the crops therein. He has also given details of his earnings from the abovesaid lands and he has produced Exs.A-1 to A-4. Onitta and Adangal extracts relating to the lands owned petitioner. All these are mentioned in detail in paragraph 8 of the Order of the court Further, the court below rightly rejected Ex.P-1 filed by the petitioner-husband to that his salary was only Rs.250 per month, and came the conclusion that he was earning least Rs.2,500 per month. So, taking all these into consideration, the court below has that he would be getting Rs.30,000 per year, in other words, Rs.2,500 per month. I find any error of jurisdiction in the order passed by the court below. 9. The result is, the order of the court below requires only one modification, viz., the maintenance is granted only from the abovesaid date of 12.9.1989 and not from the date of the main O.P. Subject to the above modification, the Civil revision petition dismissed. I find any error of jurisdiction in the order passed by the court below. 9. The result is, the order of the court below requires only one modification, viz., the maintenance is granted only from the abovesaid date of 12.9.1989 and not from the date of the main O.P. Subject to the above modification, the Civil revision petition dismissed. No costs. Order modified and revision dismissed.