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Madras High CourtCMA/1269/2015allowed

Mrs. Kothai v. Mr. Magesh Janarthanan

2015-06-30Honourable Mr Justice T.Mathivanan,Honourable Mr Justice V. Ramasubramanian4 pages

jIn the High Court of Judicature at Madras Dated : 30.6.2015 Coram :

The Honourable Mr.Justice V.RAMASUBRAMANIAN and The Honourable Mr.Justice T.MATHIVANAN Civil Miscellaneous Appeal No.1269 of 2015 and M.P.No.1 of 2015 Mrs.Kothai

...Petitioner

Vs Mr.Mahesh Janarthanan

...Respondent

APPEAL under Section 19 of the Family Courts Act against the order dated 30.4.2014 made in I.A.No.651 of 2010 in O.P.No.3116 of 2009 on the file of the Third Additional Family Court, Chennai.

For Appellant : Mr.R.Munusamy For Respondent : Mr.S.Parthasarathy Judgment was delivered by by V.RAMASUBRAMANIAN,J The wife has come up with the above appeal challenging an order passed by the Family Court granting her interim alimony in a sum of Rs.8,000/-.

2. Heard Mr.R.Munusamy, learned counsel for the appellant and Mr.S. Parthasarathy, learned counsel for the respondent.

3. The respondent/husband filed a petition in H.M.O.P.No.3116 of 2009 on the file of the Family Court, Chennai seeking dissolution of the marriage with the appellant herein on the ground of cruelty. The main petition is still pending.

4. During the pendency of the main petition, the appellant herein filed an application in I.A.No.651 of 2010 seeking interim alimony. The said application was allowed by the Family Court by an order dated 30.4.2014 fixing interim alimony in a sum of Rs.8,000/- per month. Aggrieved by the said order, the wife is on appeal.

5. The grievance of the appellant is two fold namely (a) that the quantum of alimony has not been fixed in proportion to the salary earned by the respondent and in tune with the social status of the respondent and (b) that the award of interim alimony has been made only from the date of the order rather than from the date of the application.

6. However, it is contended by Mr.S.Parthasarathy, learned counsel for the respondent that the respondent has now lost his employment with effect from 1.4.2015. In spite of it, he has been paying the interim alimony from the date of the order of the Family Court.

7. In so far as the first contention of the appellant is concerned, the parties did not lead any evidence. It was the respondent, who filed two documents, one relating to the experience certificate relating to the appellant and another, the xerox copy of the details of faculty members in a college. These documents were filed by the respondent to prove that the appellant was employed.

8. On the contrary, the appellant did not produce any document to arrive at the correct monthly income of the respondent. Therefore, the Family Court was left with no alternative except to fix an approximate amount of Rs.8,000/-. It must be remembered that while deciding an application for interim alimony, the Family Court

cannot get into a detailed enquiry and arrive at the exact quantum. The endeavour of the Family Court at that stage is only to see that the wife is able to sustain herself during the pendency of the litigation and the main case itself comes to an end at an early point of time. Therefore, the first ground of attack is rejected.

9. The second ground of attack is actually well founded. The interim alimony should have been ordered by the Family Court from the date of the application. Unfortunately, the Family Court granted it from the date of the order. Hence, to this extent, the order of the Family Court requires to be modified.

10. In view of the above, the civil miscellaneous appeal is allowed to the following extent :

i. The quantum of alimony fixed by the Family Court is upheld ii. The alimony shall be paid with effect from the date of the application in I.A.No.651 of 2010 iii. The arrears arising out of such fixation shall be paid by the respondent within a period of eight weeks iv. In the meantime, both parties shall cooperate and lead evidence, so that the main petition, which is six years old, is decided early and v. The Family Court shall try to dispose of the main petition within three months.

No costs. Consequently, the above MP is closed. (V.R.S.J.) (T.M.J.) 30.6.2015

V.RAMASUBRAMANIAN,J AND T.MATHIVANAN,J RS Index : Yes or No Internet : Yes or No To The Third Additional Family Court, Chennai.

CMA.No.1269 of 2015 and MP.No.1 of 2015 30.6.2015