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2018 DIGILAW 2713 (MAD)

Mariappan v. Subbulakshmi

2018-09-03

PUSHPA SATHYANARAYANA, T.KRISHNAVALLI

body2018
JUDGMENT : PUSHPA SATHYANARAYANA, J. 1. This appeal is filed by the appellant/husband in the matrimonial proceedings challenging the order passed in H.M.O.P. No. 70 of 2017. 2. The appellant/husband had filed H.M.O.P. No. 70 of 2017 under Section 13(1)(ia) of the Hindu Marriage Act, 1956, praying for dissolution of the marriage, dated 17.11.1996 solemnized between him and the respondent. 3. The learned Judge, Family Court, Tirunelveli, after a careful consideration, had granted a decree for divorce by dissolving the marriage solemnized between the appellant and the respondent, dated 17.11.1996. Further, the learned Judge, Family Court, Tirunelveli had also directed the appellant to pay a sum of Rs. 10,000/- per month as permanent alimony to the respondent/wife under Section 25 of the Hindu Marriage Act, 1955. Clause (iv) of the decree states that the appellant was restrained from disturbing the respondent/wife and her children from living in the house situated in No. 9A, Chockalinga Swamy Koil Street, Palayamkottai. The appellant was also restrained from entering into the house without the permission of the respondent/wife and the appellant has no right to deal with the said house in any manner alienating or encumbering the same. Now, the present appeal has been preferred by the appellant/husband, challenging the order of injunction against him. 4. Admittedly, the house in No. 9A, Chockalingasamy Street, Palayamkottai belongs to the appellant/husband and the respondent/wife and children are living in the said address. 5. A perusal of H.M.O.P. shows that the appellant/husband is living in the different address at No. 18, Sudalai Kovil Street, Palayamkottai. Curiously, in the evidence of the appellant/ husband as PW-1, he has deposed that he is willing to pay a sum of Rs. 10,000/- as maintenance for the children every month and he would deposit the same on or before 5th of every month. Further, he has deposed as follows:- xxx xxx xxx 6. The above deposition of PW-1 would go to show that the appellant/husband was willing to permit the respondent/wife and the children to continue to reside in the said address. 7. The appellant/husband having admitted to pay maintenance and permit the respondent/ wife and children to continue to reside in the said address, he was granted the relief of divorce. Therefore, he is now estopped from differing in his promise by challenging the same in the appeal. 8. 7. The appellant/husband having admitted to pay maintenance and permit the respondent/ wife and children to continue to reside in the said address, he was granted the relief of divorce. Therefore, he is now estopped from differing in his promise by challenging the same in the appeal. 8. The only contention of the learned counsel appearing for the appellant is that the residence order ought to have been passed under the provisions of the Domestic Violence Act and that too, on filing an appropriate application. 9. However, in this case, while the appellant/husband had categorically admitted for payment of maintenance and right of residence to the respondent/wife and children, the above argument cannot be sustained. Hence, the Judgment and decree passed in H.M.O.P. No. 70 of 2017 by the learned Judge, Family Court, Tirunelveli is confirmed. Though the decree restrains the appellant/husband from interfering with the peaceful possession of the respondent/wife and children and also restraining him from alienating or encumbering and dispossessing the respondent/wife, this Court is of the view that the respondent/wife also will not have any right to deal with the property by alienating, leasing, letting it out and altering the house. With the above said additional clause to the decree, the fair and decreetal order passed in H.M.O.P. No. 70 of 2017 by the learned Judge, Family Court, Tirunelveli is confirmed. 10. In the result, the Civil Miscellaneous Appeal is disposed of modifying the decree to the extent indicated above. No costs. Consequently, connected Miscellaneous Petition is closed.