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2022 DIGILAW 1561 (MAD)

K. Muthuvel @ Joswa v. M. Priya

2022-06-20

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 55 of the Divorce Act 1869 to set-aside the fair and decreetal order dated 01.02.2020 in respect of granting interim maintenance to the respondent in I.A.No.698 of 2018 in I.D.O.P.No.22 of 2017 on the file of the Family Court, Erode.) V.M. Velumani, J. 1. The Civil Miscellaneous Appeal is filed against the fair and decreetal order dated 01.02.2020 passed in I.A.No.698 of 2018 in I.D.O.P.No.22 of 2017 on the file of the Family Court, Erode. 2. The appellant is husband, who filed I.D.O.P.No.22 of 2017 on the file of the Family Court, Erode under Section 10(x) of Indian Divorce Act for dissolution of Marriage celebrated on 14.09.2017 between the appellant and the respondent-wife. Pending said Original Petition, the respondent filed an application in I.A.No.698 of 2018 claiming interim maintenance of Rs.15,000/- and Rs.50,000/- towards litigation expenses. 3. According to the respondent after marriage, due to attitude of appellant and his family members, the matrimonial life was not happy. The appellant took the respondent to her parents house on 06.12.2017 with a promise that he will come and take her after two days. The appellant did not do so, but filed I.D.O.P for dissolution of marriage. The respondent made various averments on merits of I.D.O.P. She further stated that she was working as a teacher and after marriage, she resigned the job, she is without income and depending on the income of her father, who is a carpenter, a daily wager. The appellant is a B.E.(E.E.E.) graduate and is working as an Assistant Professor in Nandha College of Technology, Erode and is earning Rs.40,000/- per month and prayed for interim maintenance of 15,000/- per month and litigation expenses of Rs.50,000/-. 4. The appellant filed counter affidavit and denied all the averments made by the respondent. The appellant made various averments on merits of the claim in I.D.O.P. In addition to that, he also stated that he is unemployed and he is not working as Assistant Professor in Nandha College of Technology, Erode and not earning Rs.40,000/- per month as alleged by the respondent. According to the appellant, the respondent is working as a teacher and has sufficient means to maintain herself and meet out the litigation expenses and prayed for dismissal of the application. 5. According to the appellant, the respondent is working as a teacher and has sufficient means to maintain herself and meet out the litigation expenses and prayed for dismissal of the application. 5. Before the learned Judge, Family Court, Erode, both the appellant and the respondent did not let in any oral or documentary evidence. 6. The learned Judge, Family Court, Erode, considered the fact in marriage Invitation filed by the appellant in I.D.O.P, wherein it has been stated that appellant is M.E. graduate and working as Assistant Professor, in Nandha College of Technology, Erode. Taking note of this fact, fixed monthly income of the appellant at Rs.30,000/- and directed the appellant to pay a sum of Rs.10,000/ per month as interim maintenance and permitted the respondent to withdraw Rs.10,000/- deposited by the appellant towards litigation expenses. 7. Against the said order, the appellant has come out with the present appeal. 8. The learned counsel appearing for the appellant reiterated the averments made in the counter affidavit and submitted that the learned Judge failed to appreciate the fact especially that the respondent is working as a teacher, earning Rs.20,000/- per month and she is capable of maintaining herself . The Tribunal, without granting opportunity to the appellant, directed the appellant to pay the interim maintenance and hence, prayed for setting aside the order of the Tribunal. 9. The learned counsel appearing for the appellant further submitted that as per the order passed by this Court on 24.11.2020, the appellant has deposited 50% of the arrears of maintenance, which comes to Rs.1,40,000/- by way of Demand Draft vide D.D.No.730466, dated 31.12.2020 and he continued to pay 50% of the interim maintenance, as ordered by this Court. 10. Though notice has been served on the respondent and her name is also printed in the cause list, there is no representation for heir either in person or through counsel. 11. Heard the counsel appearing for the appellant and perused the entire materials available on record. 12. The appellant filed I.D.O.P.No.22 of 2017 on the file of the Family Court, Erode for dissolution of marriage between the appellant and the respondent. The respondent filed counter statement in the said I.D.O.P. and is contesting the matter. Pending I.D.O.P., the respondent filed an interlocutory application in I.A.No.698 of 2018 claiming interim maintenance of Rs.15,000/- per month and a sum of Rs.50,000/- towards litigation expenses. The respondent filed counter statement in the said I.D.O.P. and is contesting the matter. Pending I.D.O.P., the respondent filed an interlocutory application in I.A.No.698 of 2018 claiming interim maintenance of Rs.15,000/- per month and a sum of Rs.50,000/- towards litigation expenses. The respondent in the affidavit made various allegations against the appellant and submitted that appellant is working as Assistant professor in Nandha College of Technology, Erode and earning Rs.40,000/- per month. Further she has stated that she was working as a teacher in a private school before marriage and she resigned the job after her marriage and she has no means to maintain herself. 13. The appellant in the counter affidavit denied all the averments and made various allegations against respondent. The appellant denied that he is working in Nandha College of Technology, Erode. In addition to that, he has stated that he is unemployed and not earning Rs.40,000/- per month. He has also stated the respondent is working as a teacher, earning Rs.20,000/- per month and she is maintaining herself. Before the learned Judge, both the appellant as well as the respondent did not let in any oral or documentary evidence to substantiate their stand. The learned Judge, Family Court, Erode, taking note that in the marriage invitation filed in I.D.O.P, it has been mentioned that appellant is working as Assistant Professor in Nandha College of Engineering, Erode, fixed the salary of the appellant as Rs.30,000/- per month and directed the appellant to pay a sum of Rs.10,000/- per month towards interim maintenance to the respondent and a sum of Rs.10,000/- towards litigation expenses. 14. In the appeal, learned counsel for the appellant filed typed set of papers, consolidated salary certificate, dated 04.11.2020 of the appellant stating that appellant is earning only Rs.15,766/- per month. There is no explanation as to why he did not file this document before the learned Judge. Considering the fact that the appellant himself filed a document to show that he is working and earning a sum of Rs.15,766/- per month and he has not proved that the respondent is working as a teacher and capable of maintaining herself, the appellant has to pay the interim maintenance to the respondent. However, considering the Salary Certificate produced by the appellant before this Court, the interim maintenance amount ordered by the Tribunal is modified to Rs.5000/- per month. 15. However, considering the Salary Certificate produced by the appellant before this Court, the interim maintenance amount ordered by the Tribunal is modified to Rs.5000/- per month. 15. At this stage, the learned counsel appearing for the appellant submitted that since the respondent failed to receive the interim maintenance amount, seeks permission of this Court to the appellant to deposit the sum of Rs.5000/- to the credit of I.D.O.P.No.22 of 2017 on the file of the Family Court, Erode. 16. Accordingly, the Civil Miscellaneous Appeal is partly allowed and the appellant is directed to pay a sum of Rs.5,000/- per month as interim maintenance to the respondent till the disposal of the Original Petition. If respondent refused to receive the amount, it is open to the appellant to deposit the same to the credit of I.D.O.P. No.22 of 2017 on the file of the Family Court, Erode. The learned Judge, Family Court, Erode, is directed to dispose the I.D.O.P.No.22 of 2017 as expeditiously as possible, preferably, within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.