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2008 DIGILAW 758 (MAD)

Anantha Padmanabhan @ Balu v. Sassicala & Another

2008-03-01

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), whereunder 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 arrear 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 arrear maintenance. The appeal has been filed by the defendant / husband. However, no cross objection has been filed by the plaintiffs / respondents. 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 the husband and his parents subjected her to mental and physical torture. 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. 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. 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. Petitioner No.1, who was pregnant at that time, was forced to leave the matrimonial home and subsequently she gave birth to the minor son Petitioner 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 petitioners found it unable to maintain her and minor son, proceedings for claiming maintenance were initiated. 4. Counter 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 husband 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 petitioners brother refused to send 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 dismiss 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 petitioners brother told that she was not interested to live with the husband. Subsequently, the husband has filed MOP.No.164 of 2001 for divorce on the ground that there is no resumption of cohabitation after the decree of dissolution. The allegations relating to cruelty, etc., were denied. Subsequently, the husband has filed MOP.No.164 of 2001 for divorce on the ground that there is no resumption of cohabitation after the decree of dissolution. The allegations relating to cruelty, etc., were denied. During 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 was dismissed. 5. 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. 6. 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. 7. In this appeal against such judgment, the only contention raised is that no documents had been filed to substantiate the claim for maintenance and in the application for interim maintenance; the wife had stated that take-home salary of the husband was only Rs.3000/-. Therefore, the direction regarding payment of Rs.800/- to the plaintiffs is exorbitant.