Vinod G Jain v. Mayuri Davey Jain

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 17.04.2018 Pronounced on : 08-06-2018

CORAM:

THE HONOURABLE MR. JUSTICE R. SUBBIAH and THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU Civil Miscellaneous Appeal No. 655 of 2018 and C.M.P. No. 5849 of 2018 --- Vinod G. Jain .. Appellant

Versus

Mayuri Davey Jain .. Respondent Appeal filed under Section 19 of The Family Courts Act against the order dated 12.02.2018 passed in I.A. No. 621 of 2017 in O.P. No. 2784 of 2015 on the file of V Additional Principal Judge, Family Court, Chennai For Appellant :

Mr. M. Sunil Kumar For Respondent :

Mr. R. Rangarajan

JUDGMENT

R. Subbiah, J The appellant has come forward with this Civil Miscellaneous Appeal aggrieved by the order dated 12.02.2018 passed in I.A. No. 621 of 2017 in O.P. No. 2784 of 2015 on the file of V Additional Principal Judge, Family Court, Chennai, whereby and whereunder, the Family Court directed the appellant to pay a sum of Rs.20,000/- towards pendente lite maintenance to the respondent and the minor female child Krishi, pending disposal of the Original Petition.

2.

The case of the appellant, as could be unfolded from the Original Petition filed by him before the Family Court for dissolution of the marriage, is that the appellant's first marriage ended in passing a decree of divorce. While so, during last week of April 2014, the appellant was introduced to the respondent by his friend Mr. Kiran Rival. Thereafter, within a

short period of time, at the instance of the respondent and her family members, the marriage between the appellant and the respondent was solemnised on 10.06.2014, with the result, even the marriage invitation could not be printed. Further, the entire marriage expenses were borne by the appellant and his family. After the marriage, the appellant and the respondent stayed in Nellore along with the parents of the appellant. However, within a week after the marriage, at the insistence of the respondent, the appellant left his parents at Nellore, came down to Chennai and resided at Korukkupet, Chennai. After reaching Chennai, the respondent called upon her mother and brother and made them to stay in the house at Korukkupet.

During the course of their stay at Chennai, the mother of the respondent and her brother interfered with the personal life of the appellant and the respondent thereby the privacy of the appellant was lost. Further, the respondent led a spend-thrift life and she was only interested in spending lavishly, thus when the demands of the respondent were not met, she threatened to lodge a complaint to the police on false pretext. In this context, differences of opinion cropped up between the appellant and the respondent and the appellant had sleepless nights.

On one occasion, the respondent insisted the appellant to pay her some amount to enable her to run a tailoring shop and accordingly, the appellant paid to the respondent various sum, however, those amount were not utilised by the respondent for running a tailoring shop but she spent them lavishly for her mother and brother. Even the suggestion made by the sisters of the appellant to lead a happy life with the appellant went unheard by the respondent. The respondent would constantly talk over phone and she never discharged her obligation as a dutiful wife.

The appellant also came to know that prior to his marriage with the respondent, the respondent and his friend Kiran Raval had an illicit relationship, however, for the reasons best known to Kiran Rival and the respondent, the marriage proposal between the appellant and the respondent was made and ultimately, the respondent was given in marriage to the appellant. Further, without the knowledge of the appellant, the respondent had taken up an employment with a CD/DVD shop at Mint Street, Chennai and during the course of her employment, the respondent was arrested for selling pirated CD/DVD and for publishing and distributing illegal and unauthorised contents through the CD/DVD.

In connection with the same incident, the appellant was also arrested and remanded to judicial custody, even though he did not commit any offence and subsequently, the appellant came out on bail. After coming out on bail, the respondent left the matrimonial company and went to Ahmedabad and was staying along with her parents. Notwithstanding the same, the respondent has given a complaint to C-1 Police Station, Chennai against the appellant on 22.09.

Court with Crl.OP No. 27431 of 2014 seeking anticipatory bail. Subsequently, at the instance of the respondent, the said Kiran Rival has also given a complaint and therefore, the appellant filed yet another petition in Crl.OP No. 27430 of 2014 seeking anticipatory bail and it was allowed by this Court on 30.09.2014. It is the contention of the appellant that by reason of the attitude of the respondent, he was subjected to enormous mental agony and cruelty and it resulted in irretrievable breakage of the matrimonial life leaving little or no scope for reunion and therefore, he had filed the Original Petition before the Family Court for dissolution of the marriage on the grounds of cruelty.

3.

Repudiating the averments made in the Original Petition, the respondent has filed a counter affidavit contending that the respondent came to know about the appellant through their family friend Kiran Ravel and that the marriage was solemnised by her parents in a grand manner at Ahmedabad as per Hindu rites and customs. The averment that the appellant or his family members did not demand any dowry at the time of marriage is false and in fact, 14 1⁄2 sovereigns of gold ornaments were presented by her parents at the time of marriage, as has been demanded by the appellant. The shifting of matrimonial home from Nellore to Chennai is not at the insistence of the respondent, as alleged.

The respondent discharged her matrimonial obligations and she had taken care of the appellant well. The allegation that the respondent spent several hours in chatting in mobile phone was denied as false. The fact remains that the appellant did not take care of the respondent well and he spent all his earnings towards his sisters. The appellant ill treated the respondent and therefore, she asked her mother to come down to Chennai and it is under such circumstance, the mother, sister and her husband came down to Chennai and stayed in the matrimonial home for a short period. After a brief stay in the matrimonial home, her parents, sister and her husband left the matrimonial home. The respondent specifically denied the avrment that the respondent had illicit relationship with Kiran Raval.

In fact, the appellant, in order to malign the reputation of the family of the respondent posted a message in the Whatsapp group that the respondent is a girl who could not be believed and she is a cheat. In such circumstance, the respondent gave a complaint to the Police Station at Tondiarpet, as a last resort. The respondent left the matrimonial home due to the fact that she was inflicted with matrimonial cruelty and she was subjected to sheer harassment. The respondent was driven out of the matrimonial home by the appellant when she was in the fourth month of pregnancy. The respondent is ready and willing to lead a happy and blissful matrimonial life with the appellant and therefore, she prayed for dismissal of the Original Petition.

4.

Pending the Original Petition, the respondent filed M.P. No. 621 of 2016 under Section 24 of The Hindu Marriage Act for a direction to the appellant to pay her and the minor child a sum of Rs.50,000/- towards pendente lite maintenance. In the affidavit filed in support of the Petition, the respondent contended that she was made to leave the matrimonial home on 13.09.2014 when she was in the fourth month of pregnancy. According to the respondent, on 21.05.2015, a female baby was born to her and the expenses relating to maternity and for deliverance of baby were looked after by her parents. It was further stated that she is depending on her parents for her day to day expenses and that she is not gainfully employed anywhere and therefore, she finds it very difficult to maintain herself and the minor female child without any amount.

The respondent also stated that she is residing at Ahmedabad and she also finds it difficult to attend the hearing of the Original Petition filed by the appellant for divorce at Chennai. In such circumstances, the respondent filed the M.P. No. 621 of 2016 seeking interim maintenance.

5.

The appellant has filed a counter affidavit in M.P. No. 621 of 2016 contending that the respondent had already obtained lifetime permanent alimony from him and therefore, she is not entitled to file the present petition seeking pendente lite maintenance. It was also stated that the respondent also filed a Petition before the Court at Ahmedabad seeking interim maintenance and therefore respondent cannot maintain this petition under Section 24 of The Hindu Marriage Act before the Family Court, Chennai for the very same prayer. It was also contended that because of the complaint given by the respondent and his consequential incarceration, he lost his employment and livelihood and therefore he finds it difficult to maintain himself and his family.

It was further contended that the respondent has filed a similar application seeking interim maintenance by filing a petition under Section 125 of Cr.P.C. against her former husband Alpesh Mahes Patel and ultimately, the respondent received a sum of Rs.4,65,000/- in the above said litigation. In such circumstances, the appellant prayed for dismissal of MP No. 621 of 2016 filed by the respondent seeking pendente lite maintenance.

6.

Upon appreciation of the rival contentions, the Family Court concluded that the appellant is the husband of the respondent and during the pendency of the Original Petition for dissolution of the marriage, he is bound to maintain the respondent. The Family Court also concluded that even though the appellant is stated to have paid to the respondent permanent alimony, no proof, whatsoever, has been produced to substantiate the same. The Family Court therefore concluded that the

appellant has an obligation to maintain the respondent and the minor female child and accordingly passed the order dated 12.02.2018 directing the appellant to pay a sum of Rs.20,000/- per month to the respondent and the minor baby 'Krishi' towards interim maintenance from the date of petition and continue to pay the same on or before 5th of every succeeding English Calander month till the disposal of the Original Petition. It is this order dated 12.02.2018 of the Family Court, which is challenged in this Civil Miscellaneous Appeal. 7.

We have heard the counsel for both sides and perused the materials placed on record. Though very many contentions have been urged by the counsel for both sides with respect to the merits of the contentions canvassed in the Original Petition, we are not inclined to deal with the same in any manner. The present appeal has been filed by the appellant only questioning the correctness or otherwise of the order dated 12.02.2018 passed by the Family Court awarding pendente lite maintenance in favour of the respondent. Therefore, it is unnecessary for us to deal with the merits of the Original Petition in this appeal.

8.

The main contention urged on behalf of the appellant is that he lost his employment and he has no wherewithal to maintain himself and his family. In order to show that he lost his employment, the appellant has not produced any documentary evidence before the Family Court. On the other hand, it is stated by the counsel for the respondent that the appellant is running a jewellery shop through which he is substantially earning income.

9.

We have noticed that the Family Court, while directing the appellant to pay a sum of Rs.20,000/- per month has taken into account that the appellant did not file any documentary evidence to show that he has paid permanent alimony to the respondent/wife, as has been contended by him. The Family Court has also taken into account that the obligation of the appellant to maintain the respondent/wife during the pendency of Original Petition is not only legal but also moral. It was also not the case of the appellant either before Family Court or this Court that the respondent is employed and earning amount. At the same time, the respondent also not filed any documentary evidence to show the earnings of the appellant, This is more so that in para No.27 of the counter affidavit filed in I.A. No. 621 of 2017 in O.P. No.

2784 of 2015, the appellant has stated that he incurred huge loss in his business and that he was indebted to several persons and he is at the mercy of his family members for his stay and accommodation.

Family Court, ought not to have directed the appellant to pay Rs.20,000/- per month to the respondent for her maintenance and that of the maintenance of the minor child.

10. The object of Section 24 of the Hindu Marriage Act is not to elevate the status or standard of the husband or wife as the case may be to be on par with each other. The purpose of awarding pendentelite maintenance is to ensure that adequate financial support is provided for the husband or wife when there is no independent income to maintain himself or herself as the case may be during the pendency of matrimonial proceedings. The financial status of the husband or wife can be taken note of by the Court only for fixation of quantum of maintenance and it is not a criteria for matching the financial status of the wife or husband as the case may be.

Taking into account the above settled principle, we are of the view that the Family Court is not justified in directing the appellant to pay pendente lite maintenance to the respondent and the minor female child at the rate of Rs.20,000/- per month. However, taking into account the fact that the respondent has to maintain herself and the minor child, we are of the view that directing the appellant to pay a sum of Rs.15,000/- per month as maintenance to the respondent and the minor child would meet the ends of justice.

11. As regards the plea raised by the appellant that the respondent has filed a Petition for interim maintenance before the Court at Allahabad and therefore the present petition is not maintainable, we are of the view that it is always open to the appellant to bring it to the notice of the Court at Allahabad regarding the petitions filed by the respondent and it is for the said Court to consider the same on its own merits.

12. In the result, we modify the order dated 12.02.2018 passed in I.A. No. 621 of 2017 in O.P. No. 2784 of 2015 on the file of V Additional Principal Judge, Family Court, Chennai and direct the appellant to pay a sum of Rs.15,000/- per month towards maintenance of the respondent and the minor child, instead of Rs.20,000/- as awarded by the Family Court. Consequently, the Civil Miscellaneous Appeal is partly allowed. No costs. Connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS-VI) //True Copy// Sub Assistant Registrar rsh

To The Presiding Officer V Additional Principal Judge Family Court, Chennai +1cc to Mr.R.RANGARAJAN, Advocate, S.R.No.35747 +2cc to Mr.M.SUNILKUMAR, Advocate, S.R.No.36025 Judgment in CMA No. 655 of 2018 RSY(CO) TR(25/06/2018)