Madras High Court
P.Palanikumar vs P.Shobana on 4 February, 2021
C.M.A. No.2241 of 2019 and C.M.P. No.9539 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.M.A. No.2241 of 2019 and
C.M.P. No.9539 of 2019
P.Palanikumar ... Appellant
-vs-
P.Shobana ... Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Family
Courts Act against the order passed in interim maintenance petition
which has been filed under Section 24 of the Hindu Marriage Act on
04.08.2018 in I.A. No.2710 of 2017 in H.M.O.P. No.2802 of 2016 by
the V Additional Family Court at Chennai.
For Appellant : Mr.M.Krishnamurthy
For Respondent : Mr.A.R.Sakthivel
JUDGMENT
(Judgment of this Court was made by T.RAJA,J.)
This appeal has been directed against the fair and decretal
interim order of maintenance directing the appellant herein to pay a
sum of Rs.25,000/- towards interim maintenance to the respondent
wife from the date of the petition.
https://www.mhc.tn.gov.in/judis/
C.M.A. No.2241 of 2019 and C.M.P. No.9539 of 2019
2.Learned counsel appearing for the appellant husband, assailing
the impugned order, argued that it is an un-usual case faced by the
appellant husband. Though the appellant being a divorcee, obtaining
legal divorce from the Sub Court, Chengalpattu on 23.07.2008 vide
H.M.O.P. No.5 of 2008, disclosing the fact, made arrangement for
second marriage with the respondent, without dissolving the marriage
from her previous husband, namely, Balasubramanian on the date of
marriage between the appellant and the respondent, the respondent
got married the appellant on 18.05.2014 as the same was dissolved
only on 18.06.2014. Peculiarly, even after the marriage, when the
respondent was having legal relationship of husband and wife with her
spouse, she ought not to have agreed for the second marriage with the
appellant as it is hit by Section 5(1) of the Hindu Marriage Act for the
simple reason that if any marriage is solemnised either by the male or
female without dissolving the first marriage, such marriage will be a
nullity. Admittedly, in the present case, when the marriage of the
appellant and the respondent was solemnised on 18.05.2014, the
respondent had obtained decree for divorce dissolving her previous
marriage with one Balasubrmanian only on 18.06.2014. In support
thereof, learned counsel appearing for the appellant has brought to our
notice a copy of decree dated 18.06.2014 passed by the Sub Court,
Ramanathapuram dissolving the marriage that was solemenised
https://www.mhc.tn.gov.in/judis/
C.M.A. No.2241 of 2019 and C.M.P. No.9539 of 2019
between the respondent and the said Balasubramanian. However, the
respondent has taken a stand in her counter affidavit filed before the
Trial Court that only due to pressure mounted on her by the appellant
that he was urgently proceeding to Saudi Arabia, she had agreed for
contracting the second marriage before getting legal decree for
divorce.
3.We do not find any merit on this submission because when the
divorce proceedings came to an end only on 18.06.2014, knowing
pretty well that her divorce petition in H.M.O.P. No.10 of 2014 filed
before the Sub Court, Ramanathapuram is pending, she cannot be
allowed to say that she was unaware of the pendency of the said
divorce proceedings in H.M.O.P. No.10 of 2014 initiated by the
respondent. In any event, this factum can be easily substantiated
before the Trial Court, wherein the Family Court, taking up the matter
for final hearing, has held that the legality of the marriage is not an
issue before the Court and as such directed the appellant to pay a sum
of Rs.25,000/- towards interim maintenance payable from the date of
petition, namely, 19.12.2016, accepting the I.A. No.2710 of 2017 in
O.P. No.2802 of 2016 and also appreciating the fact that the
respondent is all along finding it difficult to eke out her livelihood
considering the fact that the appellant is employed comfortably in
https://www.mhc.tn.gov.in/judis/
C.M.A. No.2241 of 2019 and C.M.P. No.9539 of 2019
Saudi Arabia as Accountant on a monthly remuneration of
Rs.2,50,000/-.
4.Learned counsel appearing for the respondent also pleaded
that the total arrears of monthly maintenance comes to
Rs.13,75,000/-.
5.Besides, it is a case where the Family Court has to decide the
allegation and the averments made by the appellant in the petition
filed for divorce in O.P. No.2892 of 2015 that before contracting the
second marriage with the appellant, whether the respondent had
wilfully concealed the non grant of divorce before contracting the
second marriage. Therefore, the said issue has to be gone into by the
Family Court, since we cannot dwell on this issue any more.
6.Therefore, we are of the view that the payment of
maintenance and the issue as to whether the respondent has misled
the appellant or the appellant has mounted any un-necessary pressure
on the respondent to go for marriage needs to be decided on evidence
by the Family Court. Since the appellant/husband has sought for a
decree of divorce by dissolving the marriage on the premise that his
wife had deliberately and willfully concealed the fact that she had not
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C.M.A. No.2241 of 2019 and C.M.P. No.9539 of 2019
obtained the decree of divorce before marriage, but obtained the
decree of divorce only on 18.06.2014 after the solemnization of
marriage with the appellant on 18.05.2014, during the interregnum
period, the relationship of husband and wife with the previous husband
subsisted, the said issue has to be decided at the first instance.
Besides, the application seeking maintenance payable to the
unemployed spouse and minor children should be decided within a
period of sixty days from the date of service of notice on the wife or
husband, as the case may be, under the first proviso to Section 24 of
the Hindu Marriage Act and even under the third proviso to Section
125(1) Cr.P.C., the Court has to decide the matter within sixty days
time. Therefore, we hereby setting aside the impugned decretal order,
direct the Family Court to take up both the issues simultaneously viz.
whether the marriage was a nullity and the wife is entitled for
maintenance, and dispose of the same within a period of two months
from the date of receipt of a copy of this order.
7.With the above observation and direction, the appeal stands
allowed. Consequently, C.M.P. No.9539 of 2019 is closed. No costs.
(TRJ) (GCSJ)
04.02.2021
Index : Yes/No
vga
https://www.mhc.tn.gov.in/judis/
C.M.A. No.2241 of 2019 and C.M.P. No.9539 of 2019
T.RAJA, J.
and
G.CHANDRASEKHARAN,J.
vga
To
1.The V Additional Family Court,
Chennai.
2.The Section Officer,
V.R.Section,
High Court, Madras.
C.M.A. No.2241 of 2019 and
C.M.P. No.9539 of 2019
04.02.2021
https://www.mhc.tn.gov.in/judis/
