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2011 DIGILAW 883 (MAD)

Karthik v. Minor K. Keerthana, rep. by mother and guardian Narayanee alias Krithika

2011-02-18

K.VENKATARAMAN

body2011
Judgment :- 1. The present civil revision petition is directed against the order of the learned Principal Judge of Family Court at Chennai dated 27.8.2010 made in I.A.S.R.No.5290 of 2010 in O.P.No.383 of 2007. 2. The petitioner herein has filed O.P.No.383 of 2007 against his wife for dissolution of the marriage. In the said proceedings, his minor daughter K.Keerthana, through her mother Narayanee alias Krithika, has filed an application in I.A.No.3091 of 2009 for interim maintenance. By an order dated 10.2.2010, the learned Principal Judge of Family Court, Chennai, directed the petitioner herein to pay a sum of Rs.10,000/- per month as interim maintenance from the date of petition till the disposal of the said O.P. The petitioner, challenging the said order, has filed a civil revision petition before this Court in C.R.P (PD) No.675 of 2010. The said revision came to be dismissed by this Court, by an order dated 7.4.2010. Thereafter, the petitioner filed an application in I.A.S.R.No.5290 of 2010 to reduce the interim maintenance. The said application was rejected as not maintainable and the present civil revision petition is directed against the said order. 3. Learned counsel appearing for the petitioner contended that under Section 26 of the Indian Marriage Act, 1955, the petitioner has got a right to seek modification of the earlier order of interim maintenance. On the other hand, learned counsel appearing for the respondent contended that whatever ground that has been raised in the affidavit in support of the present application was raised by the petitioner in the counter to the interim maintenance application filed by the respondent in I.A.No.3091 of 2009. That apart, in the civil revision petition filed before this Court in CRP PD No.675 of 2010 challenging the order of interim maintenance of the Family Court, the petitioner raised the same grounds, which he has raised in the present civil revision petition. Hence, according to the learned counsel appearing for the respondent, the Court below has rightly rejected the application filed by the petitioner. 4. I have heard the learned counsel appearing for the petitioner as well as learned counsel appearing for the respondent. 5. The petitioner has filed an application under Section 26 of the Hindu Marriage Act, 1955 to reduce the maintenance as ordered in I.A.No.3091 of 2009 dated 10.2.2010. 4. I have heard the learned counsel appearing for the petitioner as well as learned counsel appearing for the respondent. 5. The petitioner has filed an application under Section 26 of the Hindu Marriage Act, 1955 to reduce the maintenance as ordered in I.A.No.3091 of 2009 dated 10.2.2010. In the O.P. filed by the petitioner against his wife for dissolution of the marriage, the respondent herein has filed an application through her mother in I.A.No.3091 of 2009 for interim maintenance. By an order dated 10.2.2010, the learned Principal Judge, Family Court, Chennai, has ordered a sum of Rs.10,000/- per month as maintenance. While so, the present application has been taken out by the petitioner, as stated already, under Section 26 of the Hindu Marriage Act, to reduce the interim maintenance. The question that arises for consideration is, whether the petitioner has made out any case to reduce the interim maintenance ordered earlier by the Family Court and confirmed by this Court. 6. Before adverting to the said contention, it would be useful to extract Section 26 of the Hindu Marriage Act and the same is extracted here under:- " 26. Custody of children:- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent". The said provision makes either party to file an application to reduce or to enhance the maintenance. However, the question that remains to be answered is, whether the petitioner has made out any case for reducing the interim maintenance originally ordered. If we look at the affidavit in support of the application, we could see that whatever grounds raised by the petitioner in the counter to the application for interim maintenance in I.A.No.3091 of 2009, have been raised in the affidavit filed in support of the application for reducing the maintenance. If we look at the affidavit in support of the application, we could see that whatever grounds raised by the petitioner in the counter to the application for interim maintenance in I.A.No.3091 of 2009, have been raised in the affidavit filed in support of the application for reducing the maintenance. That apart, if we compare the grounds of revision filed in CRP PD No.675 of 2010 challenging the order of interim maintenance and the present grounds raised in this revision, we can find that absolutely there is no major change. All the grounds raised in the earlier revision have been raised in the present revision also. In ground No.4, it has been stated that " the wife having independent source of income was not considered while passing order and therefore application under Section 26 was sought to be filed." This is the only addition that has been made in ground No.4. In end of ground No.5, it has been stated that " the said parent of the wife has no independent income is erroneous and liable to be reversed and such plea was not made by either of the parties". This is the only addition that has been made in the grounds instead of "Therefore the claim of interim maintenance is nothing but an evil attempt to delay the proceedings". Thus, as rightly contended by the learned counsel appearing for the respondent, the petitioner has not made any new plea in the present civil revision petition. When this Court has already considered the request of the petitioner in the earlier civil revision petition, there need be no necessity to file the present application for reducing the interim maintenance and the present civil revision petition, challenging the order of rejection of said request. 7. Learned counsel appearing for the petitioner relied on the decision reported in A.I.R. 1982 ANDHRA PRADESH 369 – R.Venkata Subbaiah v. M.Kamalamma. That is the matter where the request for custody of the child by the wife was dismissed. The High Court of Andhra Pradesh has held that the said dismissal will not operate as res judicata for the wife from filing an application under Section 26 of the Hindu Minority and Guardianship Act. The said judgment has no relevancy to the facts of the present case. 8. The High Court of Andhra Pradesh has held that the said dismissal will not operate as res judicata for the wife from filing an application under Section 26 of the Hindu Minority and Guardianship Act. The said judgment has no relevancy to the facts of the present case. 8. Yet another decision that has been relied on by the learned counsel appearing for the petitioner is reported in A.I.R. 1971 SUPREME COURT 234 – Kulbhushan v. Raj Kumari. That is the case where the Hon'ble Apex Court has discussed how to fix the quantum of maintenance. The said judgment also may not be of any use to the petitioner. 9. Yet another decision that was cited by the learned counsel appearing for the petitioner is reported in 2000 AIR SCW 1147 – Padmja Sharma v. Ratan Lal Sharma. In paragraph 9 of the said judgment, the Hon'ble Apex Court has held that if there is a change of circumstance, an application could be filed to modify the order of interim maintenance. But, in the present case on hand, as stated already, absolutely there is no new fact and no change of circumstance has been set out. 10. In view of the above stated position, the Court below has rightly rejected the request of the petitioner for reducing the interim maintenance and I do not find any illegality or infirmity in the said order. 11. In fine, the order of the learned Principal Judge of Family Court, Chennai dated 27.8.2010 made in I.A.S.R.No.5290 of 2010 in O.P.No.383 of 2007 is confirmed and the civil revision petition stands dismissed. However, there is no order as to costs. Consequently, connected petition is closed.