Ragi.T.P vs Ragi.T.P
2021 Latest Caselaw 476 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

             THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                    &

               THE HONOURABLE MRS. JUSTICE M.R.ANITHA

     THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                       OP (FC).No.91 OF 2020

  AGAINST THE ORDER/JUDGMENT IN I.A.NO.1470/2019 IN OP 204/2018 OF
                      FAMILY COURT, OTTAPPALAM


PETITIONER/PETITIONER/1ST RESPONDENT:

             RAGI.T.P.,
             AGED 25 YEARS
             D/O. THALAYANAPARAMBIL, VEETIL RAMACHANDRAN,
             VANIYAMKULAM AMSOM, KOTHAYUR DESOM, OTTAPALAM TALUK,
             PALAKKAD DISTRICT.

             BY ADV. SRI.P.JAYARAM

RESPONDENT/RESPONDENT/PETITIONER:

             RAJESH M.,
             AGED 34 YEARS, S/O. MALAMPALLAYIL VEETTIL RAMAN,
             NEELESWARAM VILLAGE, KARUVACHERY, NEAR KAIRALI CLUB,
             HOSDURG TALUK, KASARAGOD DISTRICT, P O NEELESWARAM,
             PIN-673572.

             R1 BY ADV. SMT.D.REETHA

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD             ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (FC).No.91 OF 2020

                                    2


                           JUDGMENT

Dated this the 7th day of January 2021

M.R. Anitha, J.

This original petition has been filed to set aside the order in

I.A.No.1470/2019 in O.P.No.204/2018 on the file of the Family

Court, Ottappalam.

2. The petitioner is the first respondent in

O.P.No.204/2018. The respondent herein filed the above original

petition seeking for a decree of divorce alleging that the

petitioner voluntarily had sexual intercourse with the second

respondent in O.P.No.204/2018. According to the petitioner, she

has no job and income and depending upon her brother for her

livelihood. She claims an amount of Rs.7,500/- and Rs.5,000/-

respectively for herself and the minor child towards the interim

maintenance from the respondent. She also alleged that she is

residing 15 Kms. away from the court premises and requires an

amount of Rs.15,000/- towards litigation expenses. Respondent

is conducting his own bakery at Nileshwaram market and is

getting Rs.2,500 - 3,000/- per day.

3. Respondent filed objection denying his job and income. OP (FC).No.91 OF 2020

According to him, he is working in a bakery and is getting only a

meagre income. He also contended that the petitioner is leading

an adulterous life with the second respondent in the original

petition. Hence she is not entitled to get maintenance and

litigation expenses.

4. On hearing both sides, the court below allowed the

petition in part granting Rs.2,500/- per month to the minor child

towards interim maintenance. The court below has taken into

account the contention of the respondent that the petitioner is

living in adultery with the second respondent and he has sought

for divorce on that ground. Hence the learned family court was

of the view that if the husband prove the allegations, she is not

entitled to get maintenance. Hence the court found that since

the husband alleges adulterous life of the wife with the second

respondent in the original petition she is not entitled to get

interim maintenance and litigation expenses at this stage.

5. It is aggrieved by the said order, the petitioner came

up before this Court.

6. Heard both sides.

7. It is to be noted that the relationship between the

petitioner and the respondent as husband and wife is admitted. OP (FC).No.91 OF 2020

Though the respondent denied his avocation and income as

alleged by the petitioner in his counter statement there seems to

be no denial of the allegations that the petitioner has no income

of her own and is depending on her brother. So the question is

whether the allegation of adultery raised against the wife would

disable the court in awarding the interim maintenance and

litigation expenses.

8. Section 24 of the Hindu Marriage Act,1955

(hereinafter be referred as the Act) clearly provides that in any

proceeding under the Act if it appears to the court that either

the wife or the husband has no independent income sufficient

for his or her support and to meet the necessary expenses of the

proceedings it may on the application of the wife or the husband

order to pay the petitioner the expenses of the proceedings and

monthly maintenance. So the question would be whether the

fact that an allegation of adultery has been raised by the

husband would enable the court to refuse a statutory right

vested upon a party. It is to be remembered in this context that

only an allegation of adultery has been raised by the respondent

husband against the petitioner and it is a fact yet to be proved

by adducing evidence by the respondent to the satisfaction of OP (FC).No.91 OF 2020

the court. So the stand taken by the learned Family Court Judge

in denying a special benefit reposed upon a party based on a

ground alleged in the petition for divorce according to us

cannot be sustained in law. If such a position is accepted, in

every case an unscrupulous husband or wife, as the case may be,

can raise such allegations against the spouse and avoid of the

liability to pay the litigation expenses and interim maintenance.

That according to us, will not be the legislative intention while

such a provision has been introduced in the Act. It is relevant in

this context to quote Sushila Viresh Chhadea v. Viresh Nagshi

Chhadea (AIR 1996 Bombay, 94) - wherein, in an identical

situation it has been held while dealing with interim alimony

under Sec.24 of the Hindu Marriage Act, 1955; Sec.24 provides

for maintenance pendente lite and expenses of proceedings

clearly applies to all proceedings under the Act. It is also held

that the impugned order passed by the Family Court deferring

the decision till the disposal of main issue of nullity of marriage

on the ground of deception or fraud is not sustainable in law. It

is also held that Family Court has proceeded on an erroneous

assumption that the wife is not entitled to interim alimony

because the husband has sued for nullity of marriage. It is also OP (FC).No.91 OF 2020

held that the right of a wife for maintenance and Sec.24 of the

HM Act which provides for maintenance pendente lite and

expenses of proceedings clearly applies to all proceedings under

the Act.

9. The right to claim maintenance and expense during

pendency of proceedings under the Act is a special right

irrespective of the result of the main relief under section.13 of

the Act. So in the present case, the denial of the claim of the

petitioner for interim maintenance and litigation expense on the

ground that the respondent husband sought for divorce on the

ground of adultery is not legally sustainable and is liable to be

interfered with.

10. The learned counsel for the respondent would content

that though the O.P.(div) has been filed way back in 2016 itself

this petition under S.24 has been filed only in 2019.Of course

that can be taken into account while fixing the quantum of

litigation expense and date of fixation of maintenance if the

petitioner is otherwise entitled for the same. The grant of

maintenance, if allowed, could be only from the date of

application.

OP (FC).No.91 OF 2020

In the result, OP(FC) allowed in part and the impugned

order to the extent of refusing pendente lite maintenance to the

petitioner and litigation expenses is set aside and the Family

Court, Ottappalam is directed to consider I.A.No.1470/2019

afresh and dispose of the same within a period of two weeks

from the date of receipt of copy of this judgment and thereafter

dispose of O.P.No.204/2018 as expeditiously as possible.

Sd/-

K.VINOD CHANDRAN

JUDGE

Sd/-

                                          M.R.ANITHA

shg                                         JUDGE
                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1            TRUE COPY OF THE PETITION IN O.P.
                      NO.315/2016, ON THE FILES OF THE FAMILY
                      COURT, KASARAGOD.

EXHIBIT P1 (A)        TRUE COPY OF THE SUMMONS ISSUED BY THE
                      FAMILY COURT, KASARAGOD DIRECTING THE

PETITIONER HEREIN TO APPEAR BEFORE THAT COURT AS 1ST RESPONDENT IN OP NO.315/2016.

EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT SUBMITTED BY THE 1ST RESPONDENT/PETITIONER HEREIN IN O P NO.204/2018, ON THE FILES OF FAMILY COURT, OTTAPALAM.

EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN IA NO.1470/2019 IN OP NO. 204/2018, ON THE FILES OF FAMILY COURT, OTTAPALAM.

EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT SUBMITTED BY THE PETITIONER HEREIN IN IA NO.1470/2019 IN OP NO.204/2018 ON THE FILES OF FAMILY COURT, OTTAPALAM.

EXHIBIT P5 TRUE COPY OF THE ORDER DT 03/01/2020 IN IA NO.1470/2019 IN OP NO.204/2018 ON THE FILES OF FAMILY COURT, OTTAPALAM.

ANNEXURE A1 MEMO SHOWING SERVICE OF NOTICE ON THE RESPONDENT'S COUNSEL IN O.P.NO.204/2018 BEFORE THE FAMILY COURT, OTTAPALAM