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2008 DIGILAW 1010 (MAD)

Anantha Padmanabhan @ Balu v. Sassicala

2008-03-24

K.CHANDRU, P.K.MISRA

body2008
Judgment :- P.K. MISRA, J The aforesaid appeal has been filed by the defendant / husband challenging the decision of the Judge, Family Court, in O.S.No.233 of 2002 (O.P.No.217 of 2001), where under the trial court had directed the present appellant to pay a sum of Rs.800/-as maintenance to each of the plaintiffs / respondents, who are admittedly the wife and minor son of the present appellant. 2. Such proceedings for claiming maintenance was filed under Section 18 of the Hindu Adoption and Maintenance Act by the respondents / plaintiffs claiming a sum of Rs.2000/- per month as maintenance to each of the plaintiff and further claiming a sum of Rs.1,56,000/- towards arrears of maintenance from 20.6.1997 till 20.9.2001. The trial court has partly allowed such claim by directing payment of Rs.800/- as monthly maintenance to each of the plaintiff and by rejecting the claim regarding payment of arrears of maintenance. The appeal has been filed by the defendant( husband). However, no cross objection has been filed by the plaintiffs (wife and her son). 3. The allegations in such petition claiming maintenance is to the effect that at the time of marriage, the wife was given gold ornaments weighing 25 sovereigns and other household articles and after her marriage, she has to stay in a joint family consisting of the parents, brother and sister-in-law of the husband. It was asserted that after the brother and sister-in-law of the defendant set up their own separate residence, the mother-in-law started misbehaving with Petitioner No.1 for petty reasons. It was also alleged that she was subjected to mental and physical torture by the husband and his parents. The husband and his parents also sent a false message to the parents of the wife, who had to rush to Neyveli, but, on their arrival, they were asked to take back the first petitioner with threat and dire consequences and thereby the first petitioner was forced to leave the matrimonial home. Inspite of convening Panchayats on several occasions, nothing fruitful happened. 4. At that stage, the petitioner / wife filed a petition under Section 9 of the Hindu Marriage Act numbered as MOP.No.123 of 1997 claiming restitution. The husband had filed HMOP.No.48 of 1997 before another Sub Court, seeking divorce and such matter was transferred and taken up along with MOP.No.123 of 1997. 4. At that stage, the petitioner / wife filed a petition under Section 9 of the Hindu Marriage Act numbered as MOP.No.123 of 1997 claiming restitution. The husband had filed HMOP.No.48 of 1997 before another Sub Court, seeking divorce and such matter was transferred and taken up along with MOP.No.123 of 1997. However, the husband did not appear in the divorce petition filed by him and ultimately the said petition was dismissed on 212. 1998 for default. MOP.No.123 of 1997 was decreed ex-parte. The first respondent, who was pregnant at that time, was forced to leave the matrimonial home and subsequently she gave birth to the minor son Respondent No.2. The husband also filed MOP.No.164 of 2001 seeking divorce on the ground that parties have not resumed cohabitation within the period of one year from the decree of restitution. The husband had not bothered to pay any amount towards maintenance. In such circumstances, when the respondents found it unable to maintain themselves, proceedings for claiming maintenance were initiated by them. 5. In that suit, a written statement was filed by the husband wherein it was indicated that the wife had taken back the ornaments and other articles when she left the matrimonial home. It was alleged that the wife was always indifferent. It was further stated that she left the matrimonial home voluntarily with her parents on 20.6.1997. The husband sent legal notice on the next day i.e., 26. 1997 calling upon the wife to come back forgetting the past. However, the first plaintiffs brother refused to sent her and the husband was constrained to file HMOP.No.48 of 1997 before the Sub Court, Virudhachalam. Ultimately, the said proceeding was transferred to the Family Court, Pondicherry. However, since the wife had stated that she was interested to stay with him, he did not contest the case and the petition for divorce was allowed to be dismissed and the petition for restitution filed by the wife was ordered. However, the wife has not chosen to join the husband and when contacted, the first respondents brother told that she was not interested to live with the husband. 6. Subsequently, the husband has filed MOP.No.164 of 2001 for divorce on the ground that there is no restitution of conjugal rights after the decree of dissolution. The allegations relating to cruelty, etc., were denied. 6. Subsequently, the husband has filed MOP.No.164 of 2001 for divorce on the ground that there is no restitution of conjugal rights after the decree of dissolution. The allegations relating to cruelty, etc., were denied. During the pendency of MOP.No.123 of 1997, the trial court passed an interim order relating to payment of maintenance, which was challenged by the husband by filing CRP.No.21 of 1998. At that time, the Advocate for the wife had submitted that the wife was not insisting on the amount quantified to be paid and accordingly the Civil Revision Petition was dismissed by this Court. 7. Even though such elaborate pleadings have been filed, at the time when the matter was taken up, the defendant / husband remained absent. A proof affidavit was filed and two documents regarding proof of the marriage and birth of the second plaintiff were also filed. 8. The trial court held that the salary certificate of the defendant had not been filed. However, it gave a direction regarding payment of Rs.800/-to each of the plaintiffs as maintenance. 9. In this appeal against such judgment, the only contention raised is that no document had been filed to substantiate the claim for maintenance and in the application for interim maintenance, the wife had stated that the take-home salary of the husband was only Rs.3000/-. Therefore, the direction regarding payment of Rs.800/- each to the plaintiffs is exorbitant. 10. We are not persuaded to accept the contention raised on behalf of the appellant that keeping in view the take-home salary of the husband, the direction of payment of maintenance at the rate of Rs.800/- to the wife and son is exorbitant. 11. The liability of an able-bodied husband to maintain his wife has found acceptance not only in Sastric law but in statutory law. Submission to the effect that out of the take-home salary of Rs.3000/-, the wife and the son have been directed to receive Rs.1,600/-clearly indicates that compensation was on the higher side, is not tenable. The amount available as take-home salary of a person depends upon many factors including involuntary deposits as well as voluntary deposits. For example, liability to pay Income Tax is a statutory liability, which a person is bound to satisfy. However, there are certain other voluntary deductions made from the salary such as towards Provident Fund, which depends upon the discretion of the person concerned. For example, liability to pay Income Tax is a statutory liability, which a person is bound to satisfy. However, there are certain other voluntary deductions made from the salary such as towards Provident Fund, which depends upon the discretion of the person concerned. Similarly, if some deduction is made on account of loan, that cannot be considered as a relevant factor for prejudicially affecting the right of the wife to receive adequate maintenance. It is obvious that the appellants reduced take-home salary was not on account of meagre salary and involuntary deductions, but obviously on account of certain deductions made towards Provident Fund or loan, etc. 12. Having regard to all these aspects, we do not think that a direction to pay a sum of Rs.800/- to the wife and a further sum of Rs.800/-to the child can at all be considered on the excessive side. On the other hand, prima facie such amount appears to be on lower side, but in the absence of any challenge made by the present respondent, there is no necessity to go into such aspect. 13. In view of the above discussion, we do not find any scope to interfere with the judgment passed by the trial court regarding the quantum of maintenance payable. The appeal is, therefore, bound to be dismissed. The appellant is liable to pay costs to the respondent. The connected CMP is also closed.