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2012 DIGILAW 103 (MAD)

Muthukumarasamy v. Mohanavalli

2012-01-05

T.RAJA

body2012
Judgment :- 1. The appellant herein filed HMOP No.19 of 2001 on the file of the Sub Court, Pollachi, as against his wife/R1 herein, with a prayer for dissolution of marriage and, during the pendency of the said petition, as the appellant failed to take care of R1 and the only minor daughter/R2 herein, they filed an application before the said Court in I.A. No.31 of 2001, seeking interim alimony till the disposal of the HMOP. Accepting their case that they have no income to maintain themselves and to get food, clothing, shelter, etc., the Sub Court, Pollachi, directed the husband to pay interim alimony at the rate of Rs.500/- p.m. each to the wife and the minor daughter. However, the said order was not complied with. Consequently, the wife filed a suit against the husband in O.S. No.119 of 2003 on the file of the District Munsif, Pollachi, with a prayer to order grant of maintenance at the rate of Rs.1,200/- each to herself till her life-time and to her daughter till she gets married, by stating that, subsequent to their marriage on 01.12.1995, out of the wed-lock, on 16.05.1998, the 2nd plaintiff-female child was born and since the birth of a female baby was disliked by the husband's family, the first plaintiff was not allowed to live in the matrimonial home and, after being sent out from the matrimonial home in the midst of 1998 and deserted by the husband, the first plaintiff with her female child is living in her parents' house. While seeking maintenance, the plaintiffs also prayed the trial court to create charge over the properties of the defendant/husband. The husband filed a written statement, stating that he did not heed to the persistent demand of the wife to get his share in the properties from the parents and felt aggrieved thereby, she was frequently abusing him and it was she who actually deserted the husband and left the matrimonial home with the child. 2. The learned District Munsif, after considering the case by examining the oral and documentary evidence, passed the judgment on 17.12.2003 by holding that the plaintiffs/wife and minor daughter, are entitled for a monthly maintenance of Rs.800/-and Rs.1,200/- respectively, and simultaneously, charge was created over the properties of the husband/defendant in case of default in payment. 2. The learned District Munsif, after considering the case by examining the oral and documentary evidence, passed the judgment on 17.12.2003 by holding that the plaintiffs/wife and minor daughter, are entitled for a monthly maintenance of Rs.800/-and Rs.1,200/- respectively, and simultaneously, charge was created over the properties of the husband/defendant in case of default in payment. The appeal preferred by the defendant before the Sub Court, Pollachi, in A.S. No.3 of 2004, came to be dismissed vide judgment dated 23.08.2004. Hence, the present appeal by the husband. 3. This Court, while admitting the Second Appeal, framed the following substantial questions of law for consideration:- a) Whether a charge can be created over the properties in which the appellant has no right? b) Whether a wife can claim maintenance twice over, firstly in a maintenance suit, and secondly in matrimonial proceedings? c) Whether the judgment of the lower appellate court is vitiated, in that has held because the appellant herein has signed a lease deed, it implies, that the appellant herein has a right over the properties sought to be leased? 4. As regards the first and third questions of law, both the courts below, with reference to the case of the husband that he has no right over the properties, broadly analysed the issue by referring to his written statement, his own admission itself in the witness box and also Exs.A2 and A3, and ultimately concluded that he has ½ share in the properties by birth and that he cannot deny such factum. This Court does not find any good reason to find fault with such reasonings rendered on facts and the conclusion reached by the courts below regarding the ownership of the husband to the property over which charge was created. 5. Coming to the other question of law on twice paying the maintenance as per the orders passed in two different proceedings, the counsels appearing on both sides fairly submit that though the appellant/husband had earlier failed to comply with the direction of the Sub Court in respect of payment of interim alimony, subsequently, he has complied with the said order and now, he is also continuously paying the monthly maintenance as ordered by the trial court and confirmed by the lower appellate court. Therefore, while making it clear that the husband shall continue to make payment as per the judgment and decree passed by the courts below by adjusting the said amount against the earlier sum of Rs.500/- ordered as interim alimony in the HMOP proceedings, I hold that, in the light of the above observation, the above question of law is totally a misconceived one. Consequently, the Second Appeal fails and it is dismissed. No costs.