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2012 DIGILAW 1218 (MAD)

K. S. Ravichandran v. Sivananda Vijaya Lakshmi

2012-03-07

R.BANUMATHI, S.VIMALA

body2012
Judgment S.VIMALA, J. 1. The Civil Miscellaneous Appeal is filed challenging the order passed by the I Additional Family Court at Chennai, in I.A.2623 of 2005 in O.P.No.2370 of 2004, dated 16.6.2009. 2. The husband filed the petition for divorce against his wife on the ground of cruelty. 3. The wife filed a petition seeking permanent alimony of Rs.5,00,000/- in I.A.2623 of 2005. 4. The Family Court granted the decree for divorce in favour of the husband. The petition filed by the wife for permanent alimony was allowed in part and the husband was directed to pay a sum of Rs.3,50,000/- to the wife as permanent alimony. 5. As against the order of granting a decree for divorce, the wife has not chosen to file any appeal. It was represented by the learned counsel for the appellant that the wife did not want to join the husband and therefore, she has not chosen to file any appeal, even though, the wife has got a bright chance of succeeding in the appeal. Therefore, the decree of divorce passed by the Family Court has become final. 6. The husband has challenged the order of the Family Court, only with regard to the order passed in I.A.No.2623 of 2005 directing the husband to pay a sum of Rs.3,50,000/- as permanent alimony under the following grounds: a) When it is consistently alleged that the marriage was not consummated, the so-called wife cannot claim the status as the wife and, therefore, the petition is not maintainable. b) The Trial Court has given a finding that the wife is guilty of cruelty, then the wife is not eligible for the grant of permanent alimony. c) No materials have been produced with regard to the income of the husband and, therefore, there is no basic material for the award of permanent alimony. d) The Trial Court has not given the basis to arrive at the quantum of Rs.3,50,000/-as permanent alimony. 7. In view of the grounds raised, now the short point to be considered in this appeal is whether the order for permanent alimony passed by the Family Court is just and reasonable. 7.1. The first contention of the learned counsel for the appellant is that when the wife herself has admitted that the marriage has not been consummated then, she has no status “as wife” and, therefore, the petition is not maintainable. 7.2. 7.1. The first contention of the learned counsel for the appellant is that when the wife herself has admitted that the marriage has not been consummated then, she has no status “as wife” and, therefore, the petition is not maintainable. 7.2. The second contention is that even assuming that the wife has the status as wife and as the marriage has been dissolved on the ground of cruelty against the wife then, the wife is not entitled to make a claim for maintenance. These two contentions are untenable, because of the following reasons:- 7.3. There is no Law which rules that when the marriage is not consummated the parties to the marriage would not acquire/retain the status as husband/wife. 7.4. The husband himself has filed a petition for divorce, which indicates that only accepting the status of the respondent as wife such a petition could have been filed. When the husband himself has admitted the status of the respondent as wife, then it is unfair to contend that the respondent has no status as wife and therefore, the petition is not maintainable. 7.5. Even though the wife has not chosen to prefer any appeal against the order granting divorce a mere perusal of the order of divorce go to show that the findings are perverse and there is no justification for the grant of divorce on the ground of cruelty. 7.6. The perusal of the Judgment of the Family Court reveals that the marriage between the petitioner and the respondent is an admitted fact. There is an observation in the judgment that the sexual relationship between the petitioner and the respondent was not happy. There is an observation that the deficiency was only on the part of the petitioner-husband. Relying upon Ex.R1, which is a letter written by the brother of the wife, the trial court has given a finding that the wife was sent out of the home by the husband. But the trial court has strangely given a finding that the non-living of the wife with her husband amounts to cruelty, even after giving a finding that the wife was compelled to leave the house. But the trial court has strangely given a finding that the non-living of the wife with her husband amounts to cruelty, even after giving a finding that the wife was compelled to leave the house. The observation of the lower Court is described as below: "Whether reasonable cause or unreasonable cause, the petitioner lived without his wife made cruelty cannot be denied." The later part of the judgment, there is an observation the respondent was forced to leave the house, but, leaving of the husband singly is cruelty. These observations go to show that the findings are perverse. However, since there is no appeal against the grant of divorce, we do not propose to elaborate further. 7.7. Even assuming that the decree granting divorce is valid, even then, the wife is entitled to make a claim under Section 25 of the Hindu Marriage Act. This legal position is amply supported by the decision reported in (2005) 2 SCC 33 , Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, and the Hon'ble Supreme Court has held as follows:- “18. In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void — meaning non-existent in the eye of the law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in ChandDhawan case, the expression used in the opening part of Section 25 enabling the “court exercising jurisdiction under the Act” “at the time of passing any decree or at any time subsequent thereto” to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as “at the time of passing of any decree”, it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.” (emphasis supplied) Therefore, this Court hold that the petition filed by the wife seeking permanent alimony is maintainable. 8. Before discussing the merits of the case, it is relevant to point out originally the husband has filed C.R.P.No.1884 of 2009, seeking to set aside the order passed by the 1st Additional Family Court in I.A.No.2623 of 2005. As the order passed in I.A.No.2623 of 2005 has been clubbed with the main petition, the Civil Miscellaneous Appeal alone will lie against the order passed in the application. Having regard to this legal position advanced and giving a finding that the order passed in I.A.No.2623 of 2005 is not an interim order, but a final order, by the order dated 20.9.2010, direction has been given to the Registry to treat the Civil Revision Petition as Civil Miscellaneous Appeal and accordingly numbered as C.M.A. 9. According to the wife, the monthly income of the husband is Rs.20,000/- per month. The Trial Court has taken note of Ex.P1-Marriage Invitation and Ex. P4-Photograph and Ex.P5-copy of acknowledgement for return of articles and has come to the conclusion that the husband belongs to a wealthy family and has awarded permanent alimony to the extent of Rs.3,50,000/-. In the list of articles the 14 items of gold jewellery has been listed, apart from silver articles, dress materials and furnitures. 9.1. Prima facie, the contention of the learned counsel for the husband that there are no materials to arrive at the quantum may appear to be correct. But, it is not so, as the income of the husband is within his special knowledge. It is for the husband to prove his income especially, when it is alleged by the wife that the husband is earning a sum of Rs.20,000/- per month. But, it is not so, as the income of the husband is within his special knowledge. It is for the husband to prove his income especially, when it is alleged by the wife that the husband is earning a sum of Rs.20,000/- per month. In the absence of husband filing any document to show his income, there is no other alternative except to take the income (in the main petition) as alleged by the wife must be taken as correct, having regard to averments made in the affidavit by the wife which remains uncontroverted. The wife is aged about 34 during 2005. Now she must be aged 41. The average life Indian citizen said to be around 70. The wife is asking for Rs.5,00,000/-as life time maintenance. The husband is said to be a business man. It is also stated that he owns a house at No.15, Vellalar Street, Vadapalani, Chennai-20. Even though it is alleged that house property has been sold, no documents has been produced either to show that it was sold or if sold how the sale consideration was utilised. Therefore, the amount of maintainable fixed at Rs.3,50,000/-cannot be said to be unreasonable. 10. It is represented that the husband has already deposited a sum of Rs.2,00,000/-before the Family Court and the wife has withdrawn Rs.50,000/-Therefore, the wife is permitted to withdraw the remaining amount. 11. The Civil Miscellaneous Appeal is dismissed. Order passed by the I Additional Family Court in I.A.No.2623 of 2005 is confirmed. In view of the order passed in I.A.N0.2623 of 2005, M.P. No.1 of 2011 stands dismissed. Consequently, M.P.No.1 of 2012 praying to vacate the stay stands closed. M.P.No.2 of 2012 filed by the wife seeking permission to withdraw the amount of Rs.1,50,000/- is allowed. No costs. The Appellant is directed to deposit the balance of Rs.1,50,000/-within three months from today, failing which the respondent/wife is entitled to file/continue the Execution Proceedings.