K. GURUSAMY Vs. G. MALLIGA

JUDGEMENT

(1.) This appeal is filed by the appellant/husband, questioning the correctness of the order dated 23.02.2016 passed by the Family Court, Erode in I.A. No. 1061 of 2016 in FCOP No. 258 of 2016, which was filed by the wife/respondent herein.

(2.) The appellant herein has filed FCOP No. 258 of 2016 before the Family Court, Erode praying to grant a decree of divorce dissolving the marriage solemnised between him and the respondent on 11.06.1986. Pending the Original Petition, the wife/respondent has filed I.A. No. 1061 of 2016 in FCOP No. 258 of 2016 under Sec. 24 of The Hindu Marriage Act praying to direct the appellant to pay a sum of Rs. 10,000.00 towards interim maintenance and another sum of Rs. 10,000.00 towards litigation expenses. The application filed by the wife/ respondent was contested by the husband/appellant. The Family Court, after hearing both sides and taking into consideration the evidence available on record, allowed the application filed by the wife/respondent herein and directed the husband/appellant to pay a sum of Rs. 6,000.00 towards monthly maintenance and Rs. 5,000.00 towards litigation expenses. Aggrieved by the said order, the husband/ appellant is before this Court with this appeal.

(3.) The learned counsel appearing for the appellant would vehemently contend that earlier, the respondent herein has filed M.C. No. 42 of 2005 under Sec. 125 of the Code of Criminal Procedure before the Chief Judicial Magistrate, Erode. In the said proceedings, while adducing evidence, the respondent has categorically admitted that she has converted herself from Hinduism to Christianity six years back. The respondent has further stated that she is not willing to live with the appellant herein. Taking note of such evidence, the learned Chief Judicial Magistrate, Erode dismissed M.C. No. 42 of 2005 filed by the respondent herein on 25.07.2008. While so, the present petition filed by the respondent under Sec. 24 of The Hindu Marriage Act is not maintenable. The Family Court, Erode, without taking into account the evidence recorded in M.C. No. 42 of 2005 has erroneously directed the appellant herein to pay a sum of Rs. 6,000.00 per month as interim maintenance and Rs. 5,000.00 towards litigation expenses to the respondent. In this regard, the learned counsel for the appellant invited the attention of this Court to Sec. 18 (2) of The Hindu Adoptions and Maintenance Act, 1956, wherein it is stated that a Hindu Wife is entitled to live separately from her husband without forfeiting her claim to maintenance and as per Sec. 18 (2) (f) of the said Act, she is entitled to be maintained by her husband during her life time, if he (husband) is ceased to be a Hindu by conversion to another religion. In this case, the wife/ respondent herein has converted herself from Hinduism to Christianity and living separately therefore, she is not entitled for maintenance. According to the learned counsel for the appellant, the Family Court, Erode, without considering the above legal position, has erroneously awarded interim maintenance to the respondent and therefore, he prayed for setting aside the order passed by the court below.