Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 392 (MAD)

Vel @ Velmurugan v. Tamilmani

2023-02-01

S.M.SUBRAMANIAM

body2023
ORDER : Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order as made in I.A.No.3 of 2022 in F.C.H.M.O.P.No.27 of 2020 dated 22.11.2022 on the file of the Family Court, Dharmapuri. The Civil Revision Petition is filed against the Fair and Decreetal order passed in I.A.No.3 of 2022 in F.C.M.C.O.P.No.27 of 2020 dated 22.11.2022. 2. The marriage between the petitioner/husband and the respondent/wife was solemnised on 22.04.2018 as per Hindu Rites and Customs. One male child was born from and out of the wedlock between the petitioner and the respondent and is now with the custody of the respondent's mother. Due to misunderstanding, the petitioner and the respondent are living separately. 3. The revision petitioner/husband filed F.C.H.M.O.P.No.27 of 2020 for Restitution of Conjugal Rights. In the said petition, the respondent/wife filed Interlocutory Application in I.A.No.3 of 2022, seeking the revision petitioner to return all the property given by respondent's parents at the time of marriage as Sridhana. As per the petition filed by the respondent/wife, it is stated that the respondent's parents totally gifted 27 sovereigns to her and the parents of the revision petitioner had pledged the same and received money. After the birth of the child, the petitioner suspected the character of the respondent/wife and ill-treated her and abused her in filthy language. After filing of restitution of conjugal rights petition, the revision petitioner/ husband deserted respondent/wife for about 2½ years and he stayed at Coimbatore and the respondent/wife in her petition has stated that the revision petitioner is having illegal intimacy with another woman. Thus, the respondent/wife admitted the child in Vijay Vidhyalaya School, Dharmapuri and the educational expenses of the child, as of now is met out by the parents of the respondent/wife, who all are aged persons. The revision petitioner/ husband admitted that he is having 10 sovereigns of jewels belongs to the respondent/wife, even that has also not been returned back and other articles including personal belongings of the respondent/wife namely lenovo laptop, Titan Watch, Sonata Watch, TNPSC Study materials etc., are also lying with the custody of the revision petitioner/husband. 4. The revision petitioner/ husband admitted that he is having 10 sovereigns of jewels belongs to the respondent/wife, even that has also not been returned back and other articles including personal belongings of the respondent/wife namely lenovo laptop, Titan Watch, Sonata Watch, TNPSC Study materials etc., are also lying with the custody of the revision petitioner/husband. 4. The revision petitioner/husband before the Trial Court objected the said contention by stating that the respondent/wife and her mother requested the revision petitioner/husband to pledge the jewels in the bank and accordingly, he pledged the jewels and gave that money to the respondent/ wife. 5. It is contended that at the request of the respondent/wife and her mother, the jewels were pledged and the money was handed over to the respondent/wife. The revision petitioner is taking steps for re-union and therefore, the petition is to be dismissed. 6. The Trial Court considered the grounds raised by the parties and made a finding that the revision petitioner/husband has admitted that he has pledged two chains weighed about 10 sovereigns in the bank and gave money to the mother of the respondent/wife. 7. In the cross-examination, the revision petitioner/husband has admitted that 10 sovereigns of jewels belongs to the respondent/wife is in his custody. The respondent/wife had been thrown away from the revision petitioner's house and the revision petitioner/husband has treated her with cruelty, according to the averments in the petition. 8. Considering the totatility of the facts and circumstances, the Family Court, Dharmapuri allowed the petition in the interest of justice and directed the revision petitioner/husband to hand over the articles mentioned in the petition within a period of one week to the respondent/wife. Challenging the said order, the present Civil Revision Petition is filed. 9. The revision petitioner/husband has not raised any new ground for further adjudication except by stating that the jewels were pledged as per the instructions of the respondent/wife and her mother and the money was handed over to her. To establish the said statement, no documents were filed by the revision petitioner either before the Trial Court or before this Court. 10. To establish the said statement, no documents were filed by the revision petitioner either before the Trial Court or before this Court. 10. In the absence of any material documents to establish that the jewels belonging to the respondent/wife was pledged in the bank and the money was handed over to the mother of the respondent, the statement merely made cannot be trusted upon and therefore, this Court do not find any infirmity in respect of the findings made by the Trial Court and directed the revision petitioner/husband to return the property to the respondent/wife. 11. Accordingly, the revision petitioner/husband is bound to return the property belongs to the respondent/wife, as per the petition schedule list in I.A.No.3 of 2022 in O.P.No.27 of 2020. 12. If at all the revision petitioner is of an opinion that such materials are not available, destroyed or otherwise, he is duty bound to return the property in the form of a property or pay the equivalent costs of that property within a period of two weeks from the date of receipt of a copy of this order. 13. The learned counsel appearing on behalf of the revision petitioner, on instructions from the revision petitioner, who is also present before this Court had made an undertaking that he will return the articles/belongings, which all are available and in respect of the other articles, the value of the said articles will be calculated and the equivalent money will be settled in favour of the respondent/wife within a period of two (2) weeks. 14. In view of the undertaking, the revision petitioner is directed to return all the articles either in the form of articles, as it is, or in the form of money equivalent to the value of the said articles within a period of two (2) weeks. 15. Importantly, the right of the child in the present case is to be protected by this Court. Even in the absence of any formal petition seeking interim maintenance, the Courts concerned are bound to protect the child rights and in the present case, a 4 year old male child is now with the custody of the respondent/wife, who is unemployed. It is stated in her petition that she is leading life with the support of her aged parents and struggling to maintain her 4 year old child. 16. It is stated in her petition that she is leading life with the support of her aged parents and struggling to maintain her 4 year old child. 16. The revision petitioner being a natural guardian is duty bound to maintain his own child and non-payment of maintenance is not only an offence but violation of the child rights as established worldwide. 17. Remedy of maintenance is a measure of social justice as envisaged under the Constitution to prevent the wife and children from falling into destitution and vagrancy. The father, who is a natural guardian, cannot be allowed to escape from the clutches of maintenance, as they are duty bound to maintain the children. The dispute between the father and mother may be adjudicated. However, during the pendency of those allegations, the minor child cannot be made to suffer and Court being the custodian is duty bound to ensure that the interest, welfare and maintenance of the children are properly taken care of by the parties even during the pendency of matrimonial disputes. 18. For grant of Interim Maintenance to the minor children, no application is required. Even in the absence of any application, the Courts are bound to consider grant of interim maintenance in the interest of the minor children and to protect their livelihood, which is the Fundamental Right to life under Article 21 of the Constitution of India. 19. Preamble and Article 39 and 15(3) of the Indian Constitution envisage social justice and positive State action for empowerment of women and children. 20. An order of Interim Maintenance is conditional on the circumstance that the wife or husband, who makes a claim has no independent income sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The Court may take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The obligation of the husband to provide maintenance stands on a higher pedestal than the wife. 21. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The obligation of the husband to provide maintenance stands on a higher pedestal than the wife. 21. Regarding maintenance for minor children, the living expenses of the child would include expenses for food, clothing, residence, medical expenses and education of children. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties. Serious disability or ill-health of a spouse, child/children from the marriage/ dependent relative, who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. 22. Due to pressure on various aspects, the parties to the matrimonial disputes are not even filing any formal application for grant of Maintenance/Interim Maintenance even for the minor child/children. In such circumstances, it is the bounden duty of the Court to ensure that the interest of the minor child/children are protected by granting Interim Maintenance in the absence of any formal application during the pendency of the matrimonial disputes between the husband and the wife. 23. When the livelihood, lifestyle or education of the children are in question, then the Courts must act as a custodian of minor child/children and award Interim Maintenance to protect the interest of the minor children. In many cases, unemployed mothers are maintaining their minor child/children, causing burden to the age-old parents and such circumstances must be seriously considered by the Courts. Grandparents are burdened with their minor children but the fathers of those minor children, who are the earning members are escaping from the clutches of their liability, which cannot be tolerated by the Courts. The responsibility of the father, being primary in nature, fathers are duty bound to maintain the minor child/children, when there is a matrimonial dispute between the spouses. Denial of visitation right is not a ground to grant exemption from the payment of maintenance. Visitation right is to be decided based on other facts and circumstances, which is not connected with the grant of maintenance to the minor child/children. 24. Denial of visitation right is not a ground to grant exemption from the payment of maintenance. Visitation right is to be decided based on other facts and circumstances, which is not connected with the grant of maintenance to the minor child/children. 24. In this context, this Court is inclined to direct the revision petitioner /father of the minor child, aged about 4 years old to pay the interim maintenance of Rs.5,000/- per month, which is to be paid to the respondent/ wife through RTGS in the bank account of the respondent/wife or through Bank Demand Draft on or before 10th day of every English calendar month. 25. Regarding the O.P. filed by the revision petitioner, the respondent is at liberty to adjudicate the same in the manner known to law. The interim maintenance of Rs.5,000/- per month, as granted by this Court in the present petition is not a bar for the respondent/wife to claim further maintenance in accordance with law by filing appropriate application before the Competent Court. 26. The learned counsel for the revision petitioner made a submission that the visitation rights may be provided to the revision petitioner to visit the minor child. No doubt, the revision petitioner, as a natural guardian is entitled to have visitation right, as he is now directed by this Court to pay the interim maintenance and thus, the such a request is to be considered. 27. Accordingly, the respondent/wife is directed to provide visitation right to the revision petitioner/husband weekly once on every Sunday from 04.00 p.m to 06.00 p.m. in the park situated nearby the residence of the respondent/wife. 28. If at all any difficulty arises in respect of the directions issued in this order, either of the parties are at liberty to approach this Court by filing an appropriate petition. 29. Accordingly, the Civil Revision Petition in C.R.P.No.4247 of 2022 stands disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.