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2012 DIGILAW 2653 (MAD)

A. Narasimmaraj v. R. G. Nithyalakshmi

2012-06-26

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition has been filed questioning the order dated 31.01.2012 made by the Sub Court, Bhavani, in I.A. No: 47 of 2011 in H.M.O.P. No: 104 of 2011, in and by which a sum of Rs. 5,000/-each per month is ordered to be paid by the revision petitioner as interim maintenance to his wife and minor son from the date of filing of H.M.O.P. No: 104 of 2011 till disposal of it and a sum of Rs. 15,000/- towards legal expenses is ordered to be paid. 2. Revision petitioner is the husband who filed the original petition before the Family Court, Salem, in F.C.O.P. No: 179 of 2009 for divorce on the ground of mental cruelty which was resisted by the 1st respondent wife. The said Original Petition was later transferred to the file of the learned Subordinate Judge, Bhavani, and re-numbered as H.M.O.P. No: 104 of 2011. On 13.09.2011, the respondent wife filed an interlocutory application in I.A. No: 47 of 2011 in H.M.O.P. No: 104 of 2011 before the Sub Court, Bhavani, claiming interim alimony of Rs.5,000/- per month for herself and Rs.10,000/-per month for the child and a sum of Rs. 15,000/-towards legal expenses, till the disposal of the main petition. 3. The Court below, after considering every fact and weighing the hardship and balance of convenience between the parties, has come to the conclusion that the respondent and her minor son is entitled for a sum of Rs. 5,000/-each per month as interim alimony. It also directed the revision petitioner to pay a sum of Rs. 15,000/-towards litigation expenses. The amount of interim alimony has been ordered to be paid from the date of filing of the H.M.O.P. till the disposal of the same. Aggrieved by the same, the petitioner is before this Court on the ground that the order of the Court below is contrary to law as there was no demand for the interim alimony from the date of filing of the original petition and it could be ordered only from the date of the application claiming interim maintenance. 4. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent. 5. 4. Heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent. 5. Though the learned counsel appearing for the revision petitioner in principle is not against the Court below ordering interim maintenance, his main contention is that it cannot be ordered from the date of filing of the H.M.O.P. He submits that, to that extent this Court may clarify the impugned order otherwise, the petitioner would be put to great hardship. 6. On the other hand, the learned counsel appearing for the respondent resisted the revision by stating that the interim alimony ordered from the date of petition would barely affect the petitioner and that there is no ground to interest with the maintenance awarded by the Court below. 7. It is seen that the petitioner husband filed a petition for divorce on the ground of mental cruelty and the same is pending. While so, the respondent wife filed an interlocutory application seeking interim alimony of Rs. 5,000/- for herself and Rs.10,000/- for her minor son as well, along with a sum of Rs. 15,000/- towards legal expenses. The Court below, taking into account every factor pleaded by both the parties and their rival claims, passed the following order : "12. In the present case, according to the petitioner she has to maintain herself and her small son who has been put in a reputed school at Komarapalayam in Kindergarden class. It is easily seen from Ex.P.1 which are series of receipts issued by Academy for brilliance at Komarapalayam that the petitioner has paid substantial amount as fees to the school towards the education of her minor son Aswin Prasad. It is to be noticed that neither the education of the minor son Aswin Prasad nor the fees to be paid to the school for the education has been disputed or denied by the respondent. In view of the same it can be concluded that the petitioner is spending substantial amount towards the education costs of her son. It could be noticed from Ex.P1 series that fees has to be paid in 3 terms and further it is a matter of common experience that education now a days are very costly and more so, when is a reputed school. From this, it could be concluded that the petitioner would be needing atleast Rs.3,000/- per month towards the educational expenditure of her minor son. From this, it could be concluded that the petitioner would be needing atleast Rs.3,000/- per month towards the educational expenditure of her minor son. That apart it has to be also borne in mind that the petitioner has to provide food, shelter ad clothing besides incidental expenses such as medicine and other needs to her minor son. It cannot be assessed accurately how much the petitioner would be needing for the same as there is no evidence on record as far as it. However the fact remains out certain amount is needed towards it and taking into consideration the present day living condition, it would be opposite to determine the amount as Rs.2,000/-p.m. Accordingly, it could be concluded that the petitioner would be needing a sum of Rs. 5,000/- p.m. for maintaining her minor child. 13. According to the petitioner, she needs a sum of Rs.5,000/-p.m. for maintaining herself. It is the contention of the respondent that the petitioner is working is Adhitya Polytechnic College, Ramakoodal, and drawing a salary of Rs.5,000/- p.m. Apart from the bare contention of the petitioner and the respondent, there is nothing placed on record by the respondent to show the avocation of the petitioner and in the absence of evidence for the same, the said contention of the respondent has to be rejected and it is rejected. " 8. In the above stated position, considering the fair submission made by the learned counsel for the revision petitioner and the submission of the learned counsel for the respondent, this Court is of the opinion that the maintenance ordered by the Court below cannot be faulted with as there is a reasonable consideration of the claim. But, the Court below has ordered payment from the date of filing of the Original petition till the disposal of the same. On the other hand, a reading of Section 125 Cr.P.C. makes it clear that any allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance. 9. On the other hand, a reading of Section 125 Cr.P.C. makes it clear that any allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance. 9. In view of the aforesaid provision of law, while confirming the order of the Court below as regards the quantum of interim maintenance ordered to be paid by the revision petitioner, that part of the order directing payment from the date of filing of the Original Petition is set aside and, instead, the revision petitioner is hereby directed to pay interim maintenance of Rs. 5,000/- per month to the respondent wife and Rs.5,000/- per month to the minor son from the date of filing of the petition for interim maintenance. The sum of Rs. 15,000/- ordered to be paid by the revision petitioner towards legal expenses stands unaltered. It is needless to say that the revision petitioner will comply with the order immediately by paying the arrears of maintenance and continue to pay the same every month. The Civil Revision Petition stands disposed of on the above terms. There shall be no orders as to the costs.