Dr.A.Murali v. S.P.Aarthy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:08.12.2017

CORAM

THE HON'BLE Mr.JUSTICE A.SELVAM AND THE HON'BLE Mr.JUSTICE P.KALAIYARASAN C.M.A.No.2772 of 2017 and C.M.P.No.15811 of 2017 and C.M.A.No.3214 of 2017 Dr.A.Murali ... Appellant in CMA.2772/17 ... Respondent in CMA.3214/17 Vs.

S.P.Aarthy ... Respondent in CMA.2772/17 ... Appellant in CMA.3214/17 Prayer in CMA.No.2772 of 2017 : Civil Miscellaneous Appeal filed under Order XLIII-Rule 1[u] of CPC read wtih Section 19 of the Family Courts Act, praying to set aside the order dated 22.03.2017 passed by the Principal Judge, Family Court, Coimbatore in I.A.No.319 of 2016 in H.M.O.P.No.1371 of 2015. Prayer in CMA.No.3214 of 2017 : Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act, praying to set aside the order dated 22.03.2017 passed by the Principal Judge, Family Court, Coimbatore in I.A.No.319 of 2016 in H.M.O.P.No.1371 of 2015.

For Appellant in CMA.2772/17 /Respondent in CMA.3214/17 : Mr.B.Thilak Narayanan For Respondent in CMA.2772/17 /Appellant in CMA.3214/17 : Mr.K.Govi Ganesan COMMON JUDGMENT [Judgment of the Court was delivered by A.SELVAM,J.] These Civil Miscellaneous Appeals are directed against the order dated 22.03.2017, passed in I.A.No.319 of 2016 in H.M.O.P.No.1371 of 2015, by the Family Court, Coimbatore. 2.The respondent in C.M.A.No.2772 of 2017, as petitioner, has filed H.M.O.P.No.1371 of 2015, for getting a relief of restitution of conjugal rights, wherein, the appellant in C.M.A.No.2772 of 2017 has been arrayed as respondent.

3.During pendency of the same, the petitioner therein, as petitioner, has filed I.A.No.319 of 2016, under Section 24 of the Hindu Marriage Act, 1955, praying to direct the respondent to pay interim monthly maintenance to the tune of Rs.1,00,000/- and also litigation expenses to the tune of Rs.15,000/-.

4.The trial Court, after considering the available evidence on record, has directed the respondent therein to pay a sum of Rs.30,000/- towards interim monthly maintenance and further directed to pay a sum of Rs.10,000/- towards litigation expenses to the petitioner, by way of passing the impugned order and the same is being challenged, both by the petitioner and respondent by way of filing these Civil Miscellaneous Appeals.

5.The learned counsel appearing for the appellant in C.M.A.No.2772 of 2017 has repeatedly contended to the effect that the appellant/respondent has already closed his clinic and come down to Chennai and also not having sufficient means to pay the quantum of interim monthly maintenance as well as litigation expenses given by the trial Court and further, the respondent/petitioner has caused torture to the appellant/ respondent and under such circumstances, the order passed in I.A.No.319 of 2016 by the trial Court is liable to be set aside and the petition filed in I.A.No.319 of 2016 is liable to be dismissed.

6.Per contra, the learned counsel appearing for the respondent in C.M.A.No.2772 of 2017 has also equally contended that both the appellant and respondent have been blessed with a son and now he is aged about 15 years. But unfortunately, he is a mentally retarded person and now under the care and custody of his mother [respondent/petitioner] and for the purpose of meeting medical expenses, huge amount is required and under the said circumstances, the quantum of interim monthly maintenance awarded by the trial Court is not sufficient and the same is liable to be modified. 7.It is an admitted fact that the respondent in C.M.A.No.2772 of 2017, as petitioner, has filed H.M.O.P.No.1371 of 2015 on the file of the trial Court for getting a relief of restitution of conjugal rights. It is also equally an admitted fact that during pendency of the same, I.A.No.319 of 2016 has been filed under Section 24 of the Hindu Marriage Act, 1955, for getting interim monthly maintenance as well as litigation expenses.

8.As set out earlier, the trial Court has directed the respondent therein to pay an interim monthly maintenance of Rs.30,000/- and also Rs.10,000/- towards litigation expenses. 9.The contention put forth on the side of the appellant

in C.M.A.No.2772 of 2017 is that he is not having sufficient wherewithal to give the amounts awarded by the trial Court. 10.The contention put forth on the side of the respondent/petitioner is that the quantum of amount given by the trial Court as interim monthly maintenance is not at all sufficient and the same is liable to be modified. 11.As narrated earlier, both the petitioner and respondent in C.M.A.No.2772 of 2017 have been blessed with a son. But unfortunately, he is a mentally retarded person and admittedly, he is under the care and custody of the respondent/petitioner.

12.Considering the fact that the son of both the appellant and respondent is under the care and custody of the respondent/petitioner and further, he is a mentally retarded person, as rightly pointed out on the side of the respondent/ petitioner, some amounts are required towards his medical expenses.

13.The only defence taken on the side of the appellant/ respondent in C.M.A.No.2772 of 2017 is that he has already closed his clinic and also come down to Chennai. 14.Considering the profession of the appellant/ respondent and also considering that it is his bounden duty to maintain both the respondent/petitioner and also mentally retarded son, this Court is of the view to modify the quantum of interim monthly maintenance awarded by the trial Court as indicated below.

In fine, C.M.A.No.2772 of 2017 is dismissed without costs. C.M.A.No.3214 of 2017 is allowed in part and the order passed in I.A.No.319 of 2016 in H.M.O.P.No.1371 of 2015 by the trial Court is modified as follows:

The respondent [husband] is directed to pay an interim monthly maintenance of Rs.40,000/- to the petitioner/wife and also litigation expenses of Rs.10,000/-. The trial Court is directed to dispose of H.M.O.P.No.1371 of 2015 and H.M.O.P.No.259 of 2015 before the end of February 2018 and report the same to the registry without fail.

Connected Miscellaneous Petition is dismissed. Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar gya

To

1. The Principal Judge, Family Court, Coimbatore.

2.The Section Officer, VR Section, High Court, Madras +1cc to Mr.T.M.Hariharan, Advocate Sr.No.88309 +2cc to Mr.K.Govi Ganesan, Advocate SR.No.87728, 87729/17 C.M.A.No.2772 of 2017 and C.M.P.No.15811 of 2017 and C.M.A.No.3214 of 2017 SR(CO) sm:8.1.2018