MATHEW Vs. MADHURI DENNIS

JUDGEMENT

(1.) The petitioner in this Original Petition filed a petition under S.18 and S.19 of the Indian Divorce Act before the Family Court, Kollam for a decree for declaring that the marriage between himself and the respondent is null and void. The petitioner, who is a Village Assistant filed the Original Petition alleging that on the date of marriage, the respondent was mentally ill. In that Original Petition the respondent wife filed I.A. 1059 of 1999 claiming alimony pendente lite. The husband objected to the granting of alimony. The Family Court by order dated 21.10.2000 considered the rival contentions and found that the wife is not entitled to alimony pendente lite. That order was challenged by the petitioner before this Court in O.P. No. 33018 of 2000. This court in view of the principle laid down in Joykutty Mathew v. Valsamma Kuruvilla ( 1989 (2) KLT 742 ) set aside the order passed by the Family Court and remanded the matter for fresh consideration. This Court found that there is difference between the wording of S.26 of the Indian Divorce Act and the provisions of the Hindu Marriage Act. Hence this Court set aside the order dismissing the I.A. and directed the Family Court to consider the claim of the wife afresh. The Family Court after considering the evidence again found that the respondent wife is having 15 cents of property and a fixed deposit of Rs. 1.5 lakhs. The Family Court further took note of the fact that the petitioner is working as a Village man and getting an amount of Rs. 3500/- as take home pay. Considering all aspects the Family Court allowed an amount of Rs. 500/- as alimony pendente lite and further directed that the amount shall be payable from the date of the application i.e. from 22.9.1999 onwards. The husband has filed this Original Petition challenging the order of the Family Court granting interim maintenance. The only challenge in this Original Petition is regarding that part of the order by which the Family Court awarded interim maintenance from the date of the application. According to the petitioner since the wife is having her own income, the court below ought not have granted interim maintenance from the date of the petition, but only from the date of the order passed. I do not find any merit in this argument. In Nalini v. Velu ( 1984 KLT 790 ) a Single Judge of this Court found that there is no legal impediment in directing that the order awarding maintenance is to be effective from the date of service of summons of the main petition for restitution of conjugal rights. In Nalinis case this Court considered the matter elaborately and found that the decision rendered by this Court in Radhakumari v. K.M.K. Nair ( 1982 KLT 417 ) is correct. A Division Bench of this Court had considered this issue in Joykutty Mathew v. Valsamma Kuruvilla (1989 (2) KLT 742). The question whether the wife is entitled to pendate lite maintenance from the date of the service was not specifically raised and considered. But a Division Bench of this Court ordered maintenance from the date of the petition filed by the wife in the court below. The learned counsel appearing for the petitioner has relied on a decision reported in Ivan Erasmus v. Zena Erasmus (AIR 1982 All. 194) in which a learned Single Judge of the Allahabad High Court had taken a view that though the court has jurisdiction to order payment of maintenance pendente lite from the date of the filing of the application for the same, the court should, before fixing the date from which the amount of maintenance pendate lite is to be paid, take a responsible and practical view of things rather than to act mechanically. So in that decision also it was held that the discretion is vested with the court to take a decision as to from which date interim maintenance has to be awarded. The Family Court considered all aspects and only granted Rs. 500/- and held that the wife is entitled to maintenance from the date of the petition. The court below could have granted interim maintenance from the date of the presentation of the petition or on the date of service of summons on the wife. In D.Thankaraj v. M.C.Pushpa Rose ( AIR 1986 Ker.23 ) also this Court has confirmed an order passed by the Family Court ordering maintenance from the date on which the summons was served on the husband. So the Family Court has got a discretion to grant maintenance pendente lite either from the date of the Original Petition or from the date of service of summons on the opposite party or on the date on which the decision is taken. In this case the court below has chosen to exercise the discretion to order that interim maintenance would be payable from the date on which the application for interim maintenance is filed. No jurisdictional error or illegality has been committed by the court below so as to warrant intervention by this Court. Maximum it can be held that the court below could have granted interim maintenance from the date of the order. But that is not a ground to interfere with the order. The Original Petition has only to be dismissed.