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2021 DIGILAW 375 (MAD)

Perumal v. Saraswathi

2021-02-03

G.CHANDRASEKHARAN, T.RAJA

body2021
JUDGMENT : T. Raja, J. 1. The appellant/Mr. Perumal, husband of Mrs. Saraswathi/respondent herein has filed this Civil Miscellaneous Appeal challenging the impugned fair and decreetal order passed by the learned Family Court, Salem, in I.A. No. 180 of 2018 in F.C.O.P. No. 409 of 2016, dated 25.01.2019, in and by which, learned Family Court has directed the appellant/husband to pay a sum of Rs.3,000/- per month to his wife/respondent herein towards interim maintenance. 2. Mr. T.S. Vijaya Raghavan, learned counsel for the appellant/husband argued that the appellant has filed F.C.O.P. No. 409 of 2016 under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955 (in short "the Act") seeking dissolution of marriage on the ground of adultery and cruelty, taking a stand that his wife/respondent herein, after deserting him, has been living in adulterous life with one Mr. Ramesh/second respondent in the divorce petition and hence, she is not entitled to seek any maintenance to support her adulterous affair. It is further submitted that when the appellant is having countless oral and documentary evidences to substantiate the fact of his wife's adulterous life, the question of payment of interim maintenance to an adulterous wife is highly unfair and unjustified. This apart, divorce petition itself was filed only based on the fact that she has deserted her husband voluntarily only to live with one Mr. Ramesh and from the date of petition, she is neither living with her husband nor with her parents, but, on the contrary she is living separately with one Ramesh/second respondent in divorce petition. He further argued that the said Ramesh, going one step forward, married the appellant's first daughter when she was minor, joining hands with his wife/respondent herein and therefore, the second respondent in divorce petition also cannot escape from the clutches of law for marrying a minor girl. Therefore, he contended that the wife/respondent herein is not entitled to move any application seeking maintenance. Therefore, he contended that the wife/respondent herein is not entitled to move any application seeking maintenance. In the Interlocutory Application moved by the wife seeking maintenance, learned Family Court, considering the serious allegations illustrated in the divorce petition filed under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of adultery and cruelty, ought to have taken up both matters together, namely, F.C.O.P. No. 409 of 2016 seeking divorce and I.A. No. 180 of 2018 seeking interim maintenance, for, unless the serious allegations of the appellant that his wife is leading an adulterous life with one Ramesh is decided, the question of payment of maintenance cannot be adjudicated, the reason being, after ordering the payment of maintenance to the first respondent, if the case of the appellant seeking divorce on the ground of adultery is allowed, then the payment of monthly maintenance made by the appellant cannot be recovered from the adulterous wife. But, these vital aspects have been completely overlooked by the learned Family Court while deciding the interlocutory application seeking interim maintenance. 3. Continuing his arguments, learned counsel for the appellant further argued that in the Interlocutory Application, the appellant has specifically denied the allegation made by his wife/respondent herein that he is not running any power loom on his won nor obtained any loan from the Indian Bank or State Bank of India to run the power loom as alleged. The appellant is just a coolie working under his brother's power loom mill and hence, the question of earning a sum of Rs. 50000/- per month by running five silk looms is far from truth. But, learned Family Court, while deciding the Interlocutory Application seeking maintenance, has failed to look into the veracity of such earning capacity as alleged by the respondent/wife. Further, when the matter was taken up on 14.08.2019, learned counsel for the appellant undertook to pay the maintenance towards his daughter and by recording the said submission, this Court dismissed the appeal filed by the appellant in C.M.A. No. 3125 of 2019 as withdraw on 14.08.2019. Therefore, such an approach of the appellant clearly shows that he is reasonable and fair to a deserving person, but, so far as the respondent/wife is concerned, she is not entitled to seek even a single pie towards maintenance as she has been leading an adulterous life with one Ramesh/second respondent in divorce petition. Therefore, such an approach of the appellant clearly shows that he is reasonable and fair to a deserving person, but, so far as the respondent/wife is concerned, she is not entitled to seek even a single pie towards maintenance as she has been leading an adulterous life with one Ramesh/second respondent in divorce petition. Thus, on this score, he pleaded, this matter may be remitted back to the learned Family Court and on such remission, it has to decide both matters together, namely, divorce petition and IA seeking maintenance. 4. Opposing the above prayer, Mr. R. Marudhachalamurthy, learned counsel appearing for the respondent/wife submitted that after separation, the respondent/wife has solemnized the marriage of her first daughter with one Ramesh/second respondent in divorce petition. Therefore, when the said Ramesh is none other than her son-in-law, the allegation of the appellant/husband in the divorce petition that she is leading an adulterous life with said Ramesh is far from acceptance. Secondly, when the appellant/husband has come forward to pay the maintenance to his daughter, the respondent/wife is also entitled for the maintenance, for, the appellant/husband has not substantiated the allegation of adultery. 5. We are unable to agree with the above said submissions of the learned counsel for the respondent/wife. The appellant/husband has filed F.C.O.P. No. 409 of 2016 under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of marriage that took place on 10.03.1997 on the ground of adultery and cruelty by taking a stand that his wife has committed an offence of adultery, therefore, the marriage is to be dissolved under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955. Adultery means a voluntary sexual intercourse between a married person and someone other than that person's current spouse or partner. When the appellant/husband has raised serious objections of adulterous affairs of his wife and sought for divorce on the said ground, we are of the considered view, learned Family Court ought to have taken up both matters together, namely, divorce petition and maintenance application, the reason being, if for any reason, if the appellant/husband is able to substantiate during the trial that the divorce petition filed under Section 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, is maintainable, then the question of payment towards interim maintenance would become redundant. 6. 6. Further, by virtue of Section 21 of the Civil Procedure Code, when an objection with regard to the jurisdiction of the trial Court is raised by any one of the parties, such objection raised shall be dealt with at the earliest possible opportunity. The same analogy may also apply in this case as well, for the reason being that when the husband has filed a divorce petition under Section 13(1)(i) of the Act, alleging that his wife is leading an adulterous life with one Ramesh/second respondent in divorce petition, that has caused cruelty under Section 13(1)(ia) of the Act, in all fairness, learned Family Court ought to have decided the allegation of adultery raised in the divorce petition as well as maintenance application together. It is trite law that during the subsistence of the first marriage, the wife cannot live in adulterous life with another person. In the event of substantiating the allegation of adulterous life, the wife will be loosing her right to claim maintenance. On the other hand, if maintenance is paid for one or two years and finally, if the husband is able to substantiate his allegation that his wife is leading adulterous life, then the payment of maintenance to an undeserving party would become meaningless. Therefore, finding fault with the reasons and conclusions reached by the learned Family Court in not deciding the serious allegations made in the divorce petition first and then deciding Interlocutory Application seeking maintenance second, the impugned fair and decreetal order passed by the learned Family Court is set aside. Consequently, the matter is remitted back to the learned Family Court to decide both the cases, namely, divorce petition and Interlocutory Application, together in the manner known to law within a period of three months from the date of receipt of a copy of this judgment. 7. In fine, the Civil Miscellaneous Appeal stands allowed to the extent mentioned above. No Costs. CMP. No. 17583 of 2019 is closed.