Madras High Court
Mary Amala vs Santha Reuban on 23 April, 2021
C.R.P.(PD).No.2130 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD).No.2130 of 2018
Mary Amala ... Petitioner
Vs
Santha Reuban ... Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the order dated 31.10.2017 passed in I.A.No.314 of 2017
in O.P.No.3827 of 2012 on the file of the Learned V Additional Family
Judge at Chennai.
For Petitioner : Mr.Manoj Sreevalsan
For Respondent : No Appearance
**********
1/7
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2130 of 2018
ORDER
This Civil Revision Petition is filed to set aside the order dated
31.10.2017 passed in I.A.No.314 of 2017 in O.P.No.3827 of 2012 on the
file of the Learned V Additional Family Judge at Chennai, thereby partly
dismissing the petition for interim maintenance.
2. The petitioner is the wife and the respondent is the husband. The
respondent filed petition for divorce on the ground of cruelty. The divorce
petition has been filed in the year 2008 before the Family Court, Madurai.
In the year 2010, the petitioner filed the petition for interim maintenance for
herself and her minor son till the disposal of the divorce petition.
According to the petitioner, the respondent is doing Mobile business and his
earning huge profits in the name and style of "Tech Life" at Kakkathopu
Street, Madurai-1 and "Chennai Mobiles" opposite to Egmore Court,
Pudupet, Chennai. In fact, there are nearly 20 employees are working under
him in their monthly salary.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2130 of 2018
3. Though the Court below considered the interim maintenance
petition of the petitioner and failed to consider the interim maintenance of
her minor son. The Court below dismissed insofar as the interim
maintenance of minor son, for the reason that the minor son is not a party to
the petition. Under Section 49 of the Divorce Act provides that the petition
is a minor, he or she shall sue by his or her next friend to be appointed by
the Court. No approval was prayed by the petitioner to represent her minor
son and the minor son is not at all a party to the petition. Hence, the
petitioner is not entitled for any maintenance for her minor son.
4. In this regard, the learned counsel for the petitioner relied upon the
Judgment in (1997)7 SCC 7 the case of Jasbir Kaur Sehgal -vs- District
Judge, Dehradun. In which, the Hon'ble Supreme Court of India has given
wider interpretation under Section 24 of the Hindu Marriage Act. He also
relied upon the Judgment in the case of Sunil Babu -vs- Mariya V.Joy
(MANU/KE/0485/2013), in which the Kerala High Court held that the
Section 36 of Divorce Act has to be given a wider interpretation to include
the maintenance for the child.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2130 of 2018
5. In the case of hand, the petitioner got marriage the respondent on
13.07.2005 as per Christian Rites and Customs. Due to their wedlock a
male child was born. Thereafter, the petitioner and her minor son were
driven out from the matrimonial home and they are living separately.
6. While being so, the respondent filed the petition for divorce on the
ground of cruelty in the year 2008 before the Family Court, Madurai.
Thereafter, the divorce petition was transferred to the file of V Additional
Family Court, Chennai. Even while pending the divorce petition on the file
of the Family Court, Madurai in the year 2010 the petitioner filed the
petition for interim maintenance till the disposal of the divorce petition for
herself and also for her minor son. However, the respondent manage to drag
the interim maintenance petition for the period of 7 years and only on
31.10.2017 it was ordered.
7. Accordingly, the respondent is directed to pay a sum of Rs.10,000/-
(Rupees Ten Thousand only) per month as interim maintenance to the
petitioner till the disposal of the divorce petition and insofar as the
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2130 of 2018
maintenance to the minor son was rejected for the above said reasons. After
the interim maintenance order dated 31.10.2017 the respondent left the
divorce petition without pursuing the same and as such it was dismissed for
default. Subsequently, the respondent do not take any steps to restore the
divorce petition on fail. As rightly pointed out by the learned counsel for
the petitioner and also the Judgment made all over the Supreme Court of
India the minor son also entitled for maintenance.
8. On perusal of the counter filed by the respondent revealed that he is
running Mobile Service Centre at Madurai and Chennai. Therefore, he is
having a notional income and he has to maintain her minor son. Therefore,
this Court inclined to order to pay the interim maintenance of Rs.5000/-
(Rupees Five Thousand only) from the date of petition till the disposal of
the divorce petition. However, the learned counsel for the petitioner would
submit that after passing order in the interim maintenance application the
respondent left the matter to dismiss for default. Therefore, till the disposal
of the divorce petition the petitioner is also entitled to maintenance for her
son at Rs.5000/- (Rupees Five Thousand only) per month.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2130 of 2018
9. Accordingly, this Civil Revision Petition is allowed and the order
passed in I.A.No.314 of 2017 in O.P.No.3827 of 2012 dated 31.10.2017 on
the file of V Additional Family Court, Chennai is set aside, so far as the
rejection of maintenance to the minor son of the petitioner. No order of
costs.
23.04.2021
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
rna
To
The V Additional Family Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.2130 of 2018
G.K.ILANTHIRAIYAN. J,
rna
C.R.P.(PD).No.2130 of 2018
23.04.2021
https://www.mhc.tn.gov.in/judis/
