PERUMAL Vs. SARASWATHI

JUDGEMENT

(1.) The appellant/Mr.Perumal, husband of Mrs.Saraswathi/respondent herein has filed this Civil Miscellaneous Appeal challenging the impugned fair and decreetal order passed by the learned Family Court, Salem, in I.A.No.180 of 2018 in F.CO.P.No.409 of 2016, dated 25.01.2019, in and by which, learned Family Court has directed the appellant/husband to pay a sum of Rs. 3,000/- per month to his wife/respondent herein towards interim maintenance.

(2.) Mr.T.S.Vijaya Raghavan, learned counsel for the appellant/husband argued that the appellant has filed F.CO.P.No.409 of 2016 under Sections 13(l)(i) and 13(l)(ia) of the Hindu Marriage Act, 1955 (in short "the Act") seeking dissolution of marriage on the ground of adultery and cruelty, taking a stand that his wife/respondent herein, after deserting him, has been living in adulterous life with one Mr.Ramesh/second respondent in the divorce petition and hence, she is not entitled to seek any maintenance to support her adulterous affair. It is further submitted that when the appellant is having countless oral and documentary evidences to substantiate the fact of his wife's adulterous life, the question of payment of interim maintenance to an adulterous wife is highly unfair and unjustified. This apart, divorce petition itself was filed only based on the fact that she has deserted her husband voluntarily only to live with one Mr.Ramesh and from the date of petition, she is neither living with her husband nor with her parents, but, on the contrary she is living separately with one Ramesh/second respondent in divorce petition. He further argued that the said Ramesh, going one step forward, married the appellant's first daughter when she was minor, joining hands with his wife/respondent herein and therefore, the second respondent in divorce petition also cannot escape from the clutches of law for marrying a minor girl. Therefore, he contended that the wife/respondent herein is not entitled to move any application seeking maintenance. In the Interlocutory Application moved by the wife seeking maintenance, learned Family Court, considering the serious allegations illustrated in the divorce petition filed under Sections 13(l)(i) and13(l)(ia) of the Hindu Marriage Act, 1955, on the ground of adultery and cruelty, ought to have taken up both matters together, namely, F.CO.RN.o.409 of 2016 seeking divorce and I.A.No.180 of 2018 seeking interim maintenance, for, unless the serious allegations of the appellant that his wife is leading an adulterous life with one Ramesh is decided, the question of payment of maintenance cannot be adjudicated, the reason being, after ordering the payment of maintenance to the first respondent, if the case of the appellant seeking divorce on the ground of adultery is allowed, then the payment of monthly maintenance made by the appellant cannot be recovered from the adulterous wife. But, these vital aspects have been completely overlooked by the learned Family Court while deciding the interlocutory application seeking interim maintenance.

(3.) Continuing his arguments, learned counsel for the appellant further argued that in the Interlocutory Application, the appellant has specifically denied the allegation made by his wife/respondent herein that he is not running any power loom on his won nor obtained any loan from the Indian Bank or State Bank of India to run the power loom as alleged. The appellant is just a coolie working under his brother's power loom mill and hence, the question of earning a sum of Rs. 50000/- per month by running five silk looms is far from truth. But, learned Family Court, while deciding the Interlocutory Application seeking maintenance, has failed to look into the veracity of such earning capacity as alleged by the respondent/wife. Further, when the matter was taken up on 14.08.2019, learned counsel for the appellant undertook to pay the maintenance towards his daughter and by recording the said submission, this Court dismissed the appeal filed by the appellant in C.M.A.No.3125 of 2019 as withdraw on 14.08.2019. Therefore, such an approach of the appellant clearly shows that he is reasonable and fair to a deserving person, but, so far as the respondent/wife is concerned, she is not entitled to seek even a single pie towards maintenance as she has been leading an adulterous life with one Ramesh/second respondent in divorce petition. Thus, on this score, he pleaded, this matter may be remitted back to the learned Family Court and on such remission, it has to decide both matters together, namely, divorce petition and IA seeking maintenance.