Rathinavel v. Suseela

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 07.10.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD)No.3341 of 2018 and C.M.P.No.18955 of 2018 Rathinavel .. Petitioner Vs.

Suseela .. Respondent Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 07.08.2018 made in I.A.No.86 of 2017 in H.M.O.P.No.167 of 2015 on the file of the Sub Court, Tirupattur, Vellore District.

For Petitioner : Mr.Pa.Sudesh Kumar For Respondent : Mr.Elizabeth Ravi

O R D E R

This Civil Revision Petition is filed against the fair and decreetal order dated 07.08.2018 made in I.A.No.86 of 2017 in H.M.O.P.No.167 of 2015 on the file of the Sub Court, Tirupattur, Vellore District. 1/10

2.The petitioner filed H.M.O.P.No.167 of 2015 on the file of the Sub Court, Tirupattur, Vellore District, against the respondent and one Jessy, for divorce on the ground of adultery and for seeking maintenance. The respondent is contesting the said O.P. While H.M.O.P is pending, the respondent filed I.A.No.86 of 2017, claiming Rs.10,000/- per month as maintenance and Rs.10,000/- as litigation expenses. According to the respondent, she is unemployed and has no means to maintain herself as well as to conduct the case. The petitioner is working in Railways and getting a salary of Rs.50,000/- per month. The petitioner filed counter affidavit and denied that he is earning Rs.50,000/- and submitted that he is getting only Rs.12,500/-, after deduction. He is a sugar patient and is meeting out medical expenses every month.

Whereas, the respondent is owning a house property and getting rental income. Further, the respondent left the matrimonial home voluntarily, living in adultery with the said Jessy/2nd respondent in H.M.O.P. and leading a luxurious life. The respondent already filed M.C.No.18 of 2017 on the file of the Judicial Magistrate-I, Tirupattur, claiming maintenance of Rs.

month. She suppressed the said fact and filed the present I.A. and hence, she is not entitled for any maintenance. Before the learned Judge, the petitioner examined himself as R.W.1 and marked 5 documents as Exs.R1 to R5. The respondent did not let in any evidence. The learned Judge, considering the averments in the affidavit, counter affidavit, oral and documentary evidence let in by the petitioner, allowed the I.A., directing the petitioner to pay a sum of Rs.5,000/- per month as maintenance and Rs.5,000/- as litigation expenses to the respondent. 3.Against the said order 07.08.2018 made in I.A.No.86 of 2017 in H.M.O.P.No.167 of 2015, the petitioner has come out with the present Civil Revision Petition.

4.Though the petitioner has raised various grounds in the Civil Revision Petition, at the time of arguments, the learned counsel appearing for the petitioner restricted his submission only on the ground that the respondent who is leading adulterous life and is having illicit intimacy with various persons and left the petitioner when she was caught red3/10

handed and that in view of the adulterous life of the respondent, she is not entitled for any maintenance. In support of his contention, he relied on the judgment of the Division Bench of this Court reported in (2021) 3 MLJ 82 [Perumal Vs. Saraswathi], wherein the relevant paragraph reads as follows:

"5.We are unable to agree with the above said submissions of the learned counsel for the respondent/wife. The appellant/husband has filed F.C.O.P.No.409 of 2016 under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of marriage that took place on 10.03.1997 on the ground of adultery and cruelty by taking a stand that his wife has committed an offence of adultery, therefore, the marriage is to be dissolved under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955. Adultery means a voluntary sexual intercourse between a married person and someone other than that person's current spouse or partner.

maintainable, then the question of payment towards interim maintenance would become redundant.

6. Further, by virtue of Section 21 of the Civil Procedure Code, when an objection with regard to the jurisdiction of the trial Court is raised by any one of the parties, such objection raised shall be dealt with at the earliest possible opportunity. The same analogy may also apply in this case as well, for the reason being that when the husband has filed a C.M.A.No.3126 of 2019 divorce petition under Section 13(1)(i) of the Act, alleging that his wife is leading an adulterous life with one Ramesh/second respondent in divorce petition, that has caused cruelty under Section 13(1)(ia) of the Act, in all fairness, learned Family Court ought to have decided the allegation of adultery raised in the divorce petition as well as maintenance application together.

It is trite law that during the subsistence of the first marriage, the wife cannot live in adulterous life with another person. In the event of substantiating the allegation of adulterous life, the wife will be loosing her right to claim maintenance. On the other hand, if maintenance is paid for one or two years and finally, if the husband is able to substantiate his allegation that his wife is leading adulterous life, then the payment of maintenance to an undeserving party would become meaningless.

Family Court is set aside. Consequently, the matter is remitted back to the learned Family Court to decide both the cases, namely, divorce petition and Interlocutory Application, together in the manner known to law within a period of three months from the date of receipt of a copy of this judgment." 5.The learned counsel appearing for the respondent submitted that the petitioner has filed H.M.O.P., making false allegation that the respondent is leading adulterous life and treating the petitioner with cruelty. The respondent has filed counter affidavit, denying various allegations made by the petitioner and contended that H.M.O.P. is itself without merits. In the I.A. filed by the respondent, the petitioner has to produce the evidence and prove that she is leading adulterous life.

The learned Judge considered entire materials and awarded Rs.5000/- per month as maintenance. The facts in the judgment of the Division Bench of this Court relied on by the learned counsel appearing for the petitioner is not applicable to the facts of the present case and prayed for dismissal of the Civil Revision Petition.

6.Heard the learned counsel appearing for the petitioner as well as 6/10

the respondent and perused the entire materials available on record. 7.The petitioner is seeking divorce from the respondent on the ground of adultery. The respondent has filed counter statement and is contesting the H.M.O.P. The respondent, after two years of filing H.M.O.P. and after one year of filing counter statement, filed the present I.A., for interim maintenance. The learned Judge, considering the income of the petitioner, awarded interim maintenance of Rs.5,000/- per month and Rs.5,000/- towards litigation expenses. The learned Judge failed to consider that when divorce is sought for on the ground of adultery, the respondent wife is not entitled to maintenance when the petitioner husband proves adultery. While considering the I.A.

for interim maintenance, the learned Judge failed to consider that the petitioner has alleged adultery and the respondent herein is living with the 2nd respondent in H.M.O.P. in adulterous life.

to above. In the said judgment, the Division Bench of this Court held that when an allegation of adultery is made against the wife, the Court must decide the said issue at the earliest point and when wife files an application for interim maintenance, the same has to be considered along with the main O.P and suitable orders must be passed and remit the matter to the Family Court. The ratio in the said judgment is squarely applicable to the facts of the present case. In view of the judgment of the Division Bench of this Court referred to above, the impugned order of the learned Judge dated 07.08.2018 made in I.A.No.86 of 2017 in H.M.O.P.No.167 of 2015, in so far as the direction of interim maintenance of Rs.5,000/- per month alone is set aside and the petitioner is entitled to pay the litigation expenses of Rs.5,000/- to the respondent.

The said I.A.No.86 of 2017 is remitted back to the learned Subordinate Judge, Tirupattur, Vellore District and the learned Judge is directed to consider the said I.A. along with the impugned H.M.O.P.No.167 of 2015 and based on the decisions in the said H.M.O.P, pass appropriate orders in the I.A. for interim maintenance. H.M.O.P. is of the year 2015.

dispose of the said H.M.O.P and application, as expeditiously as possible, in any event, within a period of six months from the date of receipt of a copy of this order.

With the above direction, the Civil Revision Petition is partly allowed. No costs. Consequently, connected Miscellaneous Petition is closed.

07.10.2021 Index :: Yes/No gsa To The Subordinate Judge, Tirupattur, Vellore District.

9/10

V.M.VELUMANI, J.

gsa C.R.P.(PD)No.3341 of 2018 07.10.2021 10/10