Madras High Court
R.Tamilarasan vs Hemapriya on 16 December, 2021
CMA.No.3363 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
CMA.No.3363 of 2021 and CMP.No.19374/2021
R.Tamilarasan ... Appellant
-vs-
1. Hemapriya
2. Minor Sabari @ Tejash ... Respondents
(2nd respondent represented by Respondent No.1
his natural guardian Mother)
Civil Miscellaneous Appeal filed under Section 19 (3) of the
Family Courts Act against the fair and decreetal order dated
23.03.2021 passed in I.A.No.1 of 2021 in O.P.No.3696/2018 on the
file of the learned II Additional Family Court Judge, II Additional Family
Court, Chennai.
For Appellant : Mr.A.Manojkumar
For Respondents : Mr.D.Ajith Kumar
1/6
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CMA.No.3363 of 2021
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
Mr.R.Tamilarasan, husband of Mrs.Hemapriya-appellant herein,
having been aggrieved by the impugned fair and decreetal order
dated 23.03.2021 passed in I.A.No.1 of 2021 in O.P.No.3696/2018 by
the learned II Additional Family Court Judge, II Additional Family
Court, Chennai, thereby directing him to pay the interim maintenance
of Rs.20,000/- per month to the 1st respondent-wife and her son-2nd
respondent herein from the date of the petition, namely, 22.02.2021
with a further direction to pay a sum of Rs.25,000/- to the 1 st
respondent towards litigation expenses, has filed this appeal.
2. Learned Counsel appearing for the appellant-husband
would state that the learned Family Court has erred in substantiating
the claim of the wife in awarding interim maintenance on the basis of
the financial capacity of the husband and other relevant factors, said to
have been pleaded by the 1st respondent-wife thereby wrongly
believing that the appellant is running a Travel Agency business and a
Restaurant and also deriving rental income from two houses located at
Pencil Factory located near Mint, Chennai and Edapalayam, Redhills,
Chennai. The real facts are that the appellant is running a Call Taxi on
hire basis, driving the vehicle on his own as driver without even hiring
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CMA.No.3363 of 2021
out the said vehicle and there is no restaurant run by him. These
aspects are to be clarified by filing an affidavit of assets and liabilities
before the Family Court. But before filing the affidavit of Assets and
Liabilities, accepting the case of the 1st respondent, the Family Court
has reached a conclusion that the appellant-husband shall pay a sum
of Rs.25,000/- every month towards interim maintenance to the
respondents herein.
3. Learned Counsel appearing for the appellant-husband
would further state that though an affidavit of assets and liabilities has
to be filed as directed by the Apex Court before deciding the quantum
of monthly interim maintenance, since the appellant was unable to run
his call taxi during the pandemic situation, which is the only source for
eking out his livelihood, he could not file the affidavit of assets and
liabilities before the trial court. Therefore, if further more time is
granted for filing the affidavit of assets and liabilities, he would satisfy
the trial court in awarding the fair amount towards monthly
maintenance. The learned Counsel would also state that so far as the
payment of tuition fees of his son is concerned, he would pay the
entire tuition fees through out and as he is a dutiful father, he would
not evade from his liability at any point of time. But insofar as the
payment of maintenance is concerned, he would pay a sum of
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CMA.No.3363 of 2021
Rs.10,000/- per month and in case of any reason, both the mother and
the child fell ill that medical expenses also would be met with on his
own. Therefore, the amount of interim maintenance fixed by the
Family Court at Rs.20,000/- p.m. may be modified till the Family Court
decides the matter on considering the affidavit of assets and liabilities
to be filed by the appellant-husband shortly.
4. Mr.D.Ajith Kumar, learned Counsel appearing for the
respondents, opposing the above prayer, would submit that while the
respondents have moved an interlocutory application in
I.A.No.01/2021 seeking interim maintenance stating that the appellant
is running a Travel Agency, Restaurant as a partner therein and was
also receiving a monthly rental income from two houses situated at
Pencil Factory near Mint, Chennai and Edapalayam, Redhills, Chennai,
the appellant has failed to file an affidavit of assets and liabilities,
denying the same, therefore, the Family Court, taking into account the
said fact that there is no any evidence on the part of the appellant on
the above averments, ordered Rs.20,000/- towards interim monthly
maintenance for the respondents herein. Hence, with the minimum
amount of Rs.20,000/-, the 1st respondent has to meet out the tuition
fees of the 2nd respondent and food and other family expenses,
therefore, the same cannot be interfered with.
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CMA.No.3363 of 2021
5. We find some merits on the submissions made by the
learned Counsel for the respondents. However, since the affidavit of
assets and liabilities has not been filed by the appellant and the
appellant-husband also expressed his inability to file the affidavit of
assets and liabilities in time before the Family Court due to covid-19
pandemic situation, without going into the merits and demerits of the
allegation and counter allegation made by both the parties, we hereby
issue the following directions:
1. the appellant-husband shall pay the entire tuition fees directly
to the school of the 2nd respondent-son through out;
2. the appellant shall pay a sum of Rs.10,000/- towards monthly
interim maintenance till the matter is decided by the Family Court; and
3. the appellant shall clear the admitted arrears of maintenance
of Rs.1,00,000/- before the Family Court on the next date of hearing.
6. At this stage, learned Counsel for the respondents would
submit that the tuition fees for this term has already been paid by the
1st respondent, therefore, the same has to be reimbursed by the
appellant herein to the 1st respondent. Therefore, the appellant-
husband is directed to pay the tuition fees of Rs.44,000/- said to have
been paid by the 1st respondent-wife before the Family Court on the
next hearing date, directly to her. Further, though there was a dispute
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CMA.No.3363 of 2021
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
in respect of the arrears of interim maintenance, the same would be
considered by the Family Court after filing the affidavit of assets and
liabilities by the appellant-husband within a period of four weeks from
to-day.
7. With the above Observations and directions, the Civil
Miscellaneous Appeal is disposed of. No costs. Consequently,
connected Miscellaneous Petition is closed.
(T.R.J.,) (D.B.C.J.,)
16.12.2021
tsi
To
II Additional Family Court Judge, II Additional Family Court, Chennai.
CMA.No.3363 of 2021
https://www.mhc.tn.gov.in/judis
CMA.No.3363 of 2021
16.12.2021
https://www.mhc.tn.gov.in/judis
