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2003 DIGILAW 1207 (MAD)

B. S. Jayalakshmi v. B. S. Sairam

2003-08-01

S.K.KRISHNAN

body2003
Judgment : 1. This Civil Revision Petition has been filed against the decretal order made in I.A.No. 538 of 2002 in O.P.No. 723 of 2001 on the file of Principal Judge, Family Court at Chennai. 2. The first petitioner, who is the wife of the respondent, has filed a petition for alimony before the said Court, under Section 18(1) & (2) (b) & (g) of the Hindu Adoption and Maintenance Act, 1956. It is stated that the marriage between the duo was solemnized on 23.2.1987 at Salem as per the Hindu rites and customs. Subsequent to the marriage, in the wake of some misunderstanding, the first petitioner has filed the above petition in O.P.No. 723 of 2001 claiming maintenance from the respondent. 3. After appearance, the respondent filed a counter denying the entire allegations levelled by the first petitioner. When the said petition is pending for trial before the said Court, the first petitioner filed an application in I.A.No.538 of 2002 claiming interim maintenance which was contested by the respondent stating that the petition is not at all maintainable under law. 4. It is contended by the respondent that the petition filed under Section 18(1) & 2(b) & (e) of the Hindu Adoption and Maintenance Act, 1956 claiming alimony is not at all maintainable and even if any decree is passed in this petition, it cannot be executed as per provision of C.P.C., and therefore, the same may be dismissed. 5. It is further contended by the respondent that the first petitioner has committed adultery with one Venkatesan and when the same was questioned, she left the matrimonial house along with the children. In such circumstances, she is not entitled to claim maintenance as per Section 18(1) & 2 (b)& (g) of the Hindu Adoption and Maintenance Act, 1956. 6. After enquiry, the learned Principal Judge dismissed the petition in I.A.No. 538 of 2002 by holding that the petition under Section 24 of the Hindu Marriage Act, 1955 is not maintainable and hence the petitioners are not entitled for interim maintenance. Being aggrieved thereby and dissatisfied therewith, present revision has been filed. 7. Now the only point that arise for consideration in this petition is whether the fair and decretal order passed by the Principal Judge, Family Court, is sustainable under law. 8. Heard the learned counsel for the petitioner. Being aggrieved thereby and dissatisfied therewith, present revision has been filed. 7. Now the only point that arise for consideration in this petition is whether the fair and decretal order passed by the Principal Judge, Family Court, is sustainable under law. 8. Heard the learned counsel for the petitioner. Though notice has been served, the respondent has not chosen to appear. 9. The learned counsel for the revision petitioners would contend that the order of the learned Principal Judge dismissing the petition without assigning any valid reasons is erroneous and not in accordance with law and therefore, the order is liable to be set aside. 10. The learned counsel would strenuously contend since that the petition was dismissed on three grounds, namely, (1) that there is no provision in the Hindu Adoption and Maintenance Act for grant of interim maintenance (2) that as the petitioner has wrongly filed the petition under Section 24 of the Hindu Marriage Act the petition is not maintainable and (3) that the petitioner is not entitled to interim maintenance as the respondent alleges immorality against the petitioner in main O.P.No. 723 of 2001 and not on merits and also taking into consideration of the facts and circumstances of the case, the order passed by the learned Principal Judge dismissing the petition for interim alimony to the petitioner, including the minor children, is erroneous in law and also on facts and therefore, the same has to be set aside. 11. With regard to the first reason, namely, there is no provision in the Hindu Adoption and Maintenance Act for granting interim maintenance, the learned counsel appearing for the revision petitioners would vehemently contend that even in the absence of any specific provision of law in the petition claiming interim maintenance, the same ought to have been entertained and disposed of according to the facts and circumstances of the case and on merits. The Court has got every right to entertain such petition and grant relief sought for by the parties therein when the reasons shown by them are sufficient and satisfactory. 12. In support of her contention, the learned counsel strongly placed reliance on the decision in Deivasigamani Udayar v. Rajarani Ammal, AIR 1973 Mad. 369 . In para 3 of the said decision, it has been held as follows : “3. 12. In support of her contention, the learned counsel strongly placed reliance on the decision in Deivasigamani Udayar v. Rajarani Ammal, AIR 1973 Mad. 369 . In para 3 of the said decision, it has been held as follows : “3. In the present case, it is clear that the plaintiff and the defendant are husband and wife. That they were living together amicably until shortly before the suit is not in dispute. Whatever may be the ground urged by the plaintiff in support of her claim for maintenance, the status of the parties being admitted, the grant of maintenance ultimately is a matter of course. Bearing the general principles in view, namely the acts of Court including its delays ought not to prejudice and cause hardship to any party, the power to make an interim order is implicit, ancillary and a necessary corollary of the power to entertain a suit and pass final orders therein. In that view, I consider that the order providing interim maintenance to a wife in a suit for maintenance is justified. The mere fact that Section 18 of the Act does not make a provision for granting interim maintenance cannot negative the claim for interim maintenance. In dealing with the powers of the appellate tribunal under the Motor Vehicles Act, where a contention was raised that the appellate Tribunal has no power to grant an interim relief as there is no specific provision in the enactment itself, Rajagopala Aiyangar, J. in Swaranambal Motor Service v. Wahita Motor Service, 1950(2) Mad LJ (SN) 12, upheld the power of the Tribunal and held that even to cases before Tribunals exercising quasi judicial powers, the power to grant interim relief always exists. This is an a fortiori case where the question arises in a suit in a Civil Court. I therefore, consider that the absence of a specific provision in the Hindu Adoptions and Maintenance Act, 1956 is immaterial and that the Civil Court has jurisdiction to grant interim maintenance”. 13. Considering the legal principles laid down in the above stated case, the learned counsel pointed out that, the learned judge ought not to have dismissed the petition. Therefore, the said order is liable to be set aside. 14. 13. Considering the legal principles laid down in the above stated case, the learned counsel pointed out that, the learned judge ought not to have dismissed the petition. Therefore, the said order is liable to be set aside. 14. Withregard to the second reason, namely, the petitioner filed the petition wrongly under Section 24 of the Hindu Marriage Act, for rejecting the said petition, the learned counsel would point out that even if the provision of law has been mentioned wrongly in such a petition, the Court should not dismiss such petition abruptly without considering the plight of the petitioners, including the minor children, when the said Court has got enough jurisdiction to entertain such petition in any other provision of law. 15. As far as the case on hand, the learned counsel would point out that the Family Court has got enough jurisdiction to grant interim maintenance to the revision petitioners, including the minor children. In such circumstances, the reliefs sought for by the petitioners for claiming interim maintenance ought to have been granted by the Court below. 16. With regard to the third point, namely, alleged immorality, the leaned counsel would vehemently contend that the learned Principal Judge grossly committed error in including such reason for dismissing the petition, when especially such reason cannot be taken into consideration while deciding alimony when the very fact was not disputed even by the respondent that the petitioners are wife and children, the order of the Principal Judge, dismissing the petition for interim maintenance, is liable to be set aside. 17. In this juncture the learned counsel appearing for the revision petitioner would point out that with regard to the allegations of adultery and cruelty which could be decided only at the conclusion of the trial in the main petition. However, the learned judge without considering the circumstances under which the revision petitioners sought for the relief of interim maintenance dismissed the said petition. 18. There is some considerable force in the contentions raised by the learned counsel for the revision petitioners. However, the learned judge without considering the circumstances under which the revision petitioners sought for the relief of interim maintenance dismissed the said petition. 18. There is some considerable force in the contentions raised by the learned counsel for the revision petitioners. When the ill-fated woman with her children knocks the door of the Court which was established for the very purpose, to alleviate their grievances, the Court should not shirk its responsibility either one or the other grounds, when especially the minor children seek interim alimony from their duty bound father, otherwise, leave alone the wife, the condition of children, who are future pillars of this Country, would be pathetic. 19. Taking into consideration of the facts and circumstances of the case and the contentions raised by the learned counsel for the petitioners and also following the principles laid down in the cited decision, this Court has come to the conclusion that the reasons stated by the learned counsel for the revision petitioners are convincing and sufficient to set aside the order of the learned Principal Judge, Family Court, Chennai. 20. Accordingly, the order dated 3.1.2003, made in I.A.No. 538 of 2002 in O.P.No. 723 of 2001is set aside. 21. Since this Court has not satisfied itself that the setting aside of the said order would alone not give any immediate relief to the petitioners and the issue involved in the I.A., could not be decided by this Court as the same was not discussed by the Court below with regard to the income of the respondent, who vehemently contended, and the day to day requirements of the petitioners, it is not fair on the part of this Court to decide the quantum of interim alimony and therefore, the I.A.No. 538 of 2002 in O.P.No. 723 of 2001 is remitted back to the Court of Trial, to dispose of the matter on merits and in accordance with law within one month from the date of receipt of a copy of this order after affording reasonable opportunities to both the parties. 22. With the above direction the revision is allowed. No costs. Consequently, the C.M.P. No. 4174 of 2003 is closed.