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2008 DIGILAW 4415 (MAD)

G. P. Rajendran v. M. Valarmathi

2008-11-28

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/respondent/husband has filed this revision petition as against the order dated 17.03.2008 in I.A.No.9 of 2007 in F.C.O.P.No.90 of 2006 passed by the Family Court, Salem in awarding an interim maintenance of Rs.2,000/-per month to the respondent/petitioner/wife from the date of filing of the main FCOP till the date of disposal of the same and also the litigation expenses of Rs.5,000/-payable by the revision petitioner to the respondent/ wife. 2. The respondent/petitioner/wife has filed an I.A.No.9 of 2007 praying for an interim maintenance of Rs.2,000/- per month and also the litigation expense of Rs.5,000/-to be paid by the revision petitioner/husband. .3. According to the learned counsel for the revision petitioner/ husband, the order dated 17.03.2008 in I.A.No.9 of 2007 passed by the trial Court is in violation of principles of natural justice besides the same being illegal and that the trial Court has awarded the interim relief without considering the merits of the matter and further that the trial Court has not taken into consideration of the Ex.B.3 Mutchilika executed by the parties in regard to the customary divorce of marriage on 19.09.1996 in front of the elders of the village and after the customary divorce on 19.09.1996 between the parties both of them have remarried and this has not been taken into account by the trial Court and that the evidence of R.W.2 to R.W.6 is to the effect that the respondent/wife has married one Sekar and living with him as wife and Ex.B.4-Voter List where the respondent/wife living with her husband Sekar has not been appreciated by the trial Court in proper perspective and even Ex.B.5-Family Ration Card has not been taken note of by the trial Court in regard to the identity of the respondent/wife and for restitution of conjugal rights a lawyers notice has been issued on 02.03.2006 after a lapse of 10 years when the customary divorce has taken place on 19.09.1996 and moreover, the revision petitioner/husband has remarried and has five children and this aspect has not been taken note of by the trial Court and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice. 4. Before the Family Court, Salem, the respondent/wife has filed F.C.O.P.No.90 of 2006 against the revision petitioner/husband under Section 9 of the Hindu Marriage Act praying for a relief of restitution of conjugal rights. 5. 4. Before the Family Court, Salem, the respondent/wife has filed F.C.O.P.No.90 of 2006 against the revision petitioner/husband under Section 9 of the Hindu Marriage Act praying for a relief of restitution of conjugal rights. 5. The revision petitioner/husband has filed a counter inter alia stating that the marriage between them has taken place on 011. 1992 and that a customary divorce between them has taken place on 19.09.1996 through Panchayat in the form of a Mutchilika and the respondent/wife after one month has married one Sekar of Reddypatti and living with children at Jaggir Reddypatti, Ward No.4, Mamangam Main Road at Salem and that the revision petitioner has married one A.Valarmathi D/o.Arumugam on 19.09.1996, which has been registered at the Salem Marriage Register Office as Serial No.548/96 and that the revision petitioner has five children and since the revision petitioner is employed in Indian Oil Corporation, the respondent/wife in order to receive his future monetary and service benefits etc. has filed the present application to achieve personal gains and in that view has projected the restitution of conjugal rights petition. .6. The learned counsel for the revision petitioner/husband submits that the existence and continuation of a conjugal relationship is the foundation of an order of maintenance along with the other factor that the wife is unable to maintain herself and that the parties are living apart for a long time and since the respondent/wife is living with one Sekar as wife and husband, she is not entitled to claim maintenance and in support of his said contention relies on the decision in Kandasamy Gounder V. Palaniammal and another (2001) M.L.J. (Crl.) 230 at page 232 wherein at paragraph 12), this Court has held as follows: ."In the instant case, the presumption that can be drawn under the relevant provision of Evidence Act that continuous co-habitation for a long period and recognition of the petitioner and respondent as man and wife cannot be also drawn. Because admittedly, the parties were living apart from a long time. The petitioner herself and claimed that she was living away from her husband from a long time. But there is no indication as to how long they have been living apart. Therefore, the presumptive marriage on the basis of long co-habitation also cannot be drawn in this case." 7. Because admittedly, the parties were living apart from a long time. The petitioner herself and claimed that she was living away from her husband from a long time. But there is no indication as to how long they have been living apart. Therefore, the presumptive marriage on the basis of long co-habitation also cannot be drawn in this case." 7. It is to be taken note of that the right of a wife or maintenance is an incident of the status or estate of matrimony. The ingredients of Section 24 of the Hindu Marriage Act, 1955 are in explicit terms to the effect that the Court in its discretion may make the order in favour of the wife or the husband where it is proved that such spouse has not independent income sufficient to maintain herself or to bear the necessary expenses of the proceedings. 8. It cannot be gainsaid that a good prima facie case about the marriage must be made out by the Court in case of any such pleading/contention is raised by a party to the case. Normally, applications for interim maintenance are disposed off on affidavits like any other interim application in civil proceedings and evidence can be recorded if the Court comes to the conclusion that the matter cannot be disposed off properly. .9. This Court aptly points out the decision in Laxmibai V. Ayodhya Prasad (AIR 1991 Madhya Pradesh 47 at page 51) wherein it is inter alia held that In my considered view when an application for maintenance pendente lite under S.24 of the Act is made, it is the duty of the matrimonial Court to hold a summary enquiry to determine prima facie the merits of the case as also the question of means of the parties for maintenance. The scope of enquiry under S.24 of the Act can be compared with the scope of enquiry in a civil matter where some interim relief in the nature of temporary injunction or appointment of receiver is claimed by one of the parties. At the first stage when an interim relief is claimed by the party in a suit or action in a Court of law, the Court is required to examine prima facie the case of the parties and the necessity of granting interim relief. At the first stage when an interim relief is claimed by the party in a suit or action in a Court of law, the Court is required to examine prima facie the case of the parties and the necessity of granting interim relief. The scope of enquiry under S.24 of the Act is not as wide as the full-fledged trial of the suit or proceedings but would be certainly an enquiry based on oral evidence or affidavits of the parties sufficient enough to decide the question of grant of interim relief. 10. The respondent/wife in her evidence before the trial Court as P.W.1 has deposed that in Ex.R.1 the document dated 19.09.1996 her signature is found and that the signature of her father in the said document is Ex.R.2 and it is incorrect to state that her marriage with the revision petitioner/husband has been dissolved through cause custom by means of a document and further that it is not correct to state that she has married one Sekar after her marriage with the revision petitioner has been dissolved as per custom. 11. The revision petitioner/husband in his evidence has stated that the respondent/wife is his sisters daughter and that his marriage with the respondent/wife has been dissolved in 1996 in front of Panchayatdars and that he has not written anything about the payment of maintenance to her in the said document and that he is willing to summon and to examine Sekar in Court and it is incorrect to state that Ex.R.3 Divorce Panchayat Mutchilika dated 19.09.1996 entered into between the parties has been obtained after deceiving the respondent/wife and obtaining her signature and later the same has been created etc. 12. R.W.2 in her evidence has stated that the respondent/wife is residing with Sekar at Reddypatti near her mother-in-laws house and that the civil revision petitioner/husband after his divorce with respondent/wife, three months later has married another person and through her, he has three female issues and two male issues and that person is the second wife of the civil revision petitioner and they are residing at Alazapuram and after the divorce between the parties on 211. 1996, one month later the respondent/wife has married her relative Sekar. 13. R.W.3 in her evidence has deposed that the respondent/wife five years ago has married her relative Sekar and living with him presently. 1996, one month later the respondent/wife has married her relative Sekar. 13. R.W.3 in her evidence has deposed that the respondent/wife five years ago has married her relative Sekar and living with him presently. It is the evidence of R.W.4 to the effect that the respondent/wifes husbands name is Sekar and that she is residing at 334/3 Mamangam Main Road and while he has gone for collecting tax he has come to know that the respondent/wife and Sekar are living as husband and wife. R.W.5 in his evidence has stated that he is working as Junior Assistant in the Salem Tahsildars Office and that the person found in Ex.R.4 Voters list is the respondent/wife, who is present in Court. A perusal of Ex.R.4 shows that name of the respondent/wife is mentioned in No.379 LVY 1407873, husband name as Sekar etc. R.W.6 in his evidence has stated that in Ex.R.5-Xerox copy of Ration Card A Register the signature of respondent/wife is found in token of receiving the Ration Card. Therefore, the evidence of revision petitioner/R.W.1 and other evidence of R.W.2 to 6 go to show that the respondent/wifes husband is Sekar. However, the respondent/wife in her evidence as P.W.1 has denied her marriage with Sekar. 14. As far as the present case is concerned, this Court is of the considered view that it is the premordial duty of the trial Court to examine the prima facie case of the parties and a necessity of granting interim relief. Generally, the chance of projecting an incorrect case before a Family Court alleging false marital relationship with a view to get interim maintenance cannot be ruled out, in the considered opinion of this Court. 15. Generally, the chance of projecting an incorrect case before a Family Court alleging false marital relationship with a view to get interim maintenance cannot be ruled out, in the considered opinion of this Court. 15. On the basis of rival contentions and also looking into the allegations and counter allegations made in I.A.No.9 of 2007 and the counter and also considering the witnesses evidence adduced on both sides in the case, this Court, without expressing any opinion on the merits of the case, is of the view that the trial Court should conduct a full-fledged enquiry though not like an enquiry in a civil case but to decide the claim of respondent/wife in regard to the interim maintenance and her plea of litigation expenses and the trial Court is directed to give its categorical finding in regard to the factum or otherwise of the marriage of the respondent/wife with one Sekar and to decide the issue of the grant of interim relief or otherwise in the manner known to law and in this view of the matter, this Court sets aside the order of the trial Court passed in I.A.No.9 of 2007 and disposes of the civil revision petition, leaving the parties to bear their own costs. 16. In the result, the order of the trial Court in I.A.No.9 of 2007 is set aside and the Civil Revision Petition is disposed off with a direction to the trial Court viz., Family Court, Salem to conduct a full fledged enquiry though not like an enquiry in a civil case but to decide the claim of respondent/wife in regard to the interim relief in I.A.No.9 of 2007 to extract the truth of the matter in issue. Liberty is given to the parties to summon Sekar as a witness or as a Court witness before the trial Court and to examine him to arrive at the truth of the matter and in this regard, the parties are directed to take appropriate steps in the manner known to law and that the trial Court shall accord permission accordingly. Liberty is given to the parties to summon Sekar as a witness or as a Court witness before the trial Court and to examine him to arrive at the truth of the matter and in this regard, the parties are directed to take appropriate steps in the manner known to law and that the trial Court shall accord permission accordingly. Furthermore, in view of the peculiar circumstances of the main case, this Court directs the trial Court to dispose of the I.A.No.9 of 2007 for interim relief along with the main F.C.O.P.No.90 of 2006 and to dispose off both the matters within a period of 45 days from the date of receipt of copy of this order and to report compliance so that the disputes/controversies can be put to rest. Consequently, connected miscellaneous petition is closed.