Kanniappan vs Saroja
2021 Latest Caselaw 14933 Mad

                                                                                C.R.P.(N.P.D).No.3556 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 27.07.2021

                                                            CORAM

                                    THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                               C.R.P.(PD) No. 3556 of 2018
                                                           and
                                           CMP Nos.19951 of 2018 & 10754 of 2021

                     Kanniappan                                     ....       Petitioner

                                                               Vs

                     Saroja                                         ....       Respondent

                     Prayer :- Civil Revision Petition is filed under Article 227 of the
                     Constitution of India, to set aside the fair and decreetal order dated
                     12.06.2018 made in I.A.No.707 of 2018 in O.P.No.1046 of 2001 on the
                     file of the Principal Judge, Family Court, Chennai.


                                      For Petitioner       : Mr. J.Saravana Vel
                                      For Respondent       : Dr.G.Krishnamurthy
                                                             ORDER

This Civil Revision Petition is filed against the fair and decreetal

order dated 12.06.2018 made in I.A.No.707 of 2018 in O.P.No.1046 of

2001 on the file of the Principal Family Court, Chennai, thereby ordering

permanent alimony.

2. The petitioner is the husband and the respondent is the

https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

wife. The petitioner filed a petition for divorce and the respondent filed

a petition for restitution of conjugal rights. While pending both the

petitions, the respondent/wife filed a petition for permanent alimony in

I.A.No.707 of 2018 and the same was allowed on 12.06.2018. Aggrieved

by the same, the present Civil Revision Petition is filed.

3. The learned counsel for the petitioner would submit that

originally in the year 2001 the petitioner filed a petition for divorce, on

the ground of cruelty. Pending divorce petition, the respondent filed a

petition for restitution of conjugal rights. The Court below allowed the

petition for restitution of conjugal rights and dismissed the petition for

divorce. Aggrieved by the same, the petitioner preferred an appeal

before this Court in CMA Nos.3366 and 3367 of 2009. This Court by a

Judgment dated 16.11.2016 set aside the orders passed in FCOP No.1046

of 2001 filed by the petitioner/husband for divorce and FCOP No.1099 of

2004 filed by the respondent/wife for restitution of conjugal rights and

remanded back the matter to the Trial Court for fresh consideration of the

evidence already let in by the parties and also any fresh evidence to be let

in by the parties and to pass order afresh on merits and in accordance

with law. After remitted back to the Trial Court, the respondent filed an https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

Interlocutory Application claiming permanent alimony of

Rs.1,00,00,000/- payable by the petitioner/husband. The Court below

allowed the divorce petition filed by the petitioner and dismissed the

petition seeking restitution of conjugal right filed by the respondent.

4. However, the Court below allowed the petition seeking

permanent alimony and directed the petitioner to pay a sum of

Rs.25,00,000/- towards permanent alimony for the respondent's life time.

From the year 2001, when the petition for divorce as well as restitution of

conjugal rights were pending, the respondent did not choose to file any

petition seeking permanent alimony.

5. Admittedly, in the year 2001, the respondent/wife left the

matrimonial home leaving behind two sons born to them. From the

childhood, the petitioner had been taking care of them and providing

food, shelter and everything. Now, they got married and residing in the

same portion of the house owned by the petitioner herein. The Court

below unfortunately decided the issue as claim petition filed under the

Motor Vehicles Act, calculating the age of the respondent and awarded

huge sum of Rs.25,00,000/- as permanent alimony. The petitioner has https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

no income at all, now he is aged about 64 years and he is taken care of by

his two sons. At the time of their marriage, he was working as Peon in a

private concern and he was drawing very meagre salary. His father was

allotted with a residential house by the Slum Clearance Board, in which,

the petitioner put up first floor construction by availing loan. The

petitioner, though filed divorce petition before the Trial Court

unfortunately the documents which were cited by the petitioner were not

marked. Those documents are lease agreements dated 25.10.1986,

15.12.2000 and 16.11.2001 and the bank pass book of the petitioner.

Therefore, the petitioner also filed a petition to receive and mark

additional documentary evidence on the side of the petitioner before this

Court in CMP No.10754 of 2021.

6. He further submitted that the Court below, while awarding

permanent alimony, failed to follow the procedure as contemplated under

the provision and also contrary to the Judgment of the Hon'ble Supreme

Court of India. In support of his contention, before the Court below, he

examined P.Ws.3 and 4 who are none other than his own sons. They

categorically deposed that from their childhood the petitioner only had

taken care of them including dressing, bathing and cooking etc., https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

everything. Their mother never taken care of them at any point of time.

From 2001 onwards, she left them and living with her sister. As per the

evidence of the petitioner, he had no permanent income at all. After

resigning his job in the private concern, he started selling business of

spares of chapels and shoes, in which, he got meagre income to maintain

his two sons.

7. Insofar, the respondent is concerned, she is well settled

with her sister and her sister is a political person and she doesn't need any

monitory help from the petitioner. All along she failed to claim any

interim maintenance and all of sudden after a period of 18 years she filed

a petition for permanent alimony. However, the Court below ordered

very huge sum of Rs.25,00,000/- towards permanent alimony and it is

very higher than to his income. In support of his contention, he relied

upon the Judgment reported in 2021 (2) SCC 324 and 2017 (14) SCC

8. Per contra, the learned counsel for the respondent would

submit that the respondent got married with the petitioner on 24.08.1986.

Due to their wedlock they gave birth to two male children who are none https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

other than P.Ws.3 and 4. Admittedly, the petitioner was working as

coolie in a private concern with a salary of Rs.300/- During her

marriage the respondent was presented with gold ornaments. The said

gold ornaments were given to the petitioner to start business. Thereafter,

he developed their business, in which the respondent only had taken care

of the entire business. Due to her hard work, the business was flourished

and earned huge money. However, the respondent was driven out from

the matrimonial home by the petitioner and he was not paying any single

penny from the date of her driven out from the matrimonial home.

Though the respondent did not claim any maintenance during the

pendency of the divorce petition as well as the conjugal rights petition,

she is entitled to get permanent alimony when their marriage was

dissolved by the Court of Law.

9. In fact, the respondent filed a petition for restitution of conjugal

rights and as such, she was in fond hope that she will be taken back by

the petitioner. Now the petitioner leased out the first floor and also

earning huge money from his business apart from her sons' income. The

petitioner being the husband, duty bound to maintain the wife. He also

relied upon the judgment reported in 1970 (3) SCC 129, in which, the https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

Hon'ble Supreme Court of India held that 25% of the husband's net

salary would be just and proper should be awarded as maintenance to

the wife.

10. He further relied upon the judgment reported in 2017 1

MWN (Civil) 150 held that the wife is entitled to huge maintenance.

Therefore, the Court below rightly ordered for a sum of Rs.25,00,000/-

as permanent alimony and the respondent is aged about 54 years.

Therefore, the Court below rightly ordered permanent alimony and

prayed for dismissal of this Civil Revision Petition.

11. Heard, Mr. J.Saravana Vel, learned counsel appearing for the

petitioner and Dr.G.Krishnamurthy, learned counsel appearing for the

respondent.

12. The petitioner and the respondent have got married on

24.08.1986. Due to their wedlock they gave birth to two male children

who have examined as P.Ws.3 and 4. Due to misunderstanding between

them, the respondent left the matrimonial home and stayed with her sister.

Thereafter, the respondent lodged so many complaints on various https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

occasions against the petitioner herein. Therefore, the petitioner was

constrained to file a petition for divorce on the ground of cruelty in the

year 2001. Pending divorce petition, the respondent filed a petition for

restitution of conjugal rights. The Trial Court ordered restitution of

conjugal rights in favour of the respondent and dismissed the petition for

divorce. Aggrieved by the same, the petitioner herein filed an appeal

before this Court and the Hon'ble Division Bench of this Court, set aside

both the orders passed in the divorce petition as well as the restitution of

conjugal rights and remitted the matter back to the Trial Court for fresh

consideration by a Judgment dated 16.11.2016.

13. When the petitions remitted back to the Trial Court,

the petitioner examined P.Ws. 1 to 4 and the respondent examined R.Ws.1

to 2. Thereafter, the respondent filed a petition seeking permanent

alimony on 25.01.2018. The respondent alleged that the petitioner is

earning Rs.1,00,000/- as rental income and also from his business. In

support of the said contention, the respondent failed to prove the same by

any evidence. In fact, the petitioner availed loan in the year 2000 by

receipt of advance for the portion which was rented out to the third

parties. Except her oral claim that she had helped the petitioner in https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

business, she has not produced any evidence to substantiate her claim.

That apart, the respondent also failed to produce any evidence to show

that the petitioner is receiving rent to the tune of Rs.1,00,000/-.

However, the respondent prayed in the said petition for a sum of

Rs.2,500/- per month may be awarded towards permanent alimony. From

the date of separation of both the petitioner and the respondent,

admittedly, the children are in the custody of the petitioner. He provided

all facilities to his children such as, education, food, shelter and

everything including cooking and the respondent never come forward to

take care of their children.

14. On perusal of the deposition of P.Ws.3 and 4 revealed that

they have been taken care of by their father and due to the conduct of

their mother they could not pursue their studies further. They also

categorically deposed that the respondent was doing leather business ;

saree business and money lending business. The Court below ordered

Rs.25,00,000/- as permanent alimony payable by the petitioner for the

reason that the petitioner has admitted that he is ready to pay a sum of

Rs.2,500/- per month to the respondent even in the year 2001 itself.

Though no proof of rental income and other income by the petitioner https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

filed by the respondent, the Court below notionally decided the income

of the petitioner at Rs.25,000/- per month and also calculated the age of

the respondent herein and awarded permanent alimony by calculating 20

years, used as multiplier of Rs.10,000/- per month was ordered and total

sum of Rs.25,00,000/- towards permanent alimony.

15. In this regard, the learned counsel for the petitioner relied

upon the judgment reported in 2021 (2) SCC 324 in the case of Rajesh

Vs. Neha and another, the Hon'ble Supreme Court of India held that the

parties may lead oral and documentary evidence with respect to their

income and expenditure and standard of living etc., for fixing the

permanent alimony. The duration of marriage would be a relevant factor

to be taken into consideration for determining the permanent alimony.

The income of the petitioner and reasonable needs of wife and dependent

children have to be seen while fixing quantum of permanent alimony.

Simultaneously, the financial capacity of the husband, his actual income,

reasonable expenses and dependant family member liabilities, if any,

would be required to be taken into consideration to arrive at the

appropriate quantum of permanent alimony. These are all the factors to

determine the quantum of alimony payable to the wife.

16. In the case on hand, as stated supra, the respondent left the https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

matrimonial home in the year 2001 and she is living with her sister.

Though the divorce petition was filed in the year 2001, the respondent

filed a petition for permanent alimony only in the year 2018.

Admittedly, the respondent failed to prove the income of the petitioner by

way of any material evidence. However, the petitioner admitted the fact

that he was willing to pay a sum of Rs.2,500/- per month as maintenance

to the respondent in the year 2001 itself. Further the petitioner is also

aged person and his sons are residing along with the petitioner and they

are taking care of the petitioner. The petitioner being the husband, he is

duty bound to maintain his wife also. Since, the divorce was granted on

the ground of cruelty and the respondent asked for permanent alimony,

the Trial Court has rightly ordered permanent alimony payable by the

petitioner to the respondent herein. However, the quantum of the

permanent alimony is very high and this Court feels that it is liable to be

reduced.

17. Considering the age of the petitioner and income of the

petitioner, the permanent alimony is fixed at Rs.10,00,000/- payable by

the petitioner to the respondent as one time permanent alimony. The

petitioner is directed to pay permanent alimony of Rs.10,00,000/- within https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

a period of three months from the date of receipt of a copy of this order.

18. Accordingly, the order dated 12.06.2018 made in

I.A.No.707 of 2018 in O.P.No.1046 of 2001 on the file of the Principal

Judge, Family Court, Chennai is hereby modified, insofar as the quantum

of permanent alimony is alone and the Civil Revision Petition is partly

allowed.

19. In view of the above order passed in CRP.No.3556 of

2018, the CMP.No.10754 of 2021 is dismissed. Consequently, connected

Miscellaneous Petition is closed. No cost.

27.07.2021

Lpp Index:Yes/No Internet:Yes/No Speaking Order: Yes/No To

1. The Principal Judge, Family Court, Chennai.

2. The Section Officer, V.R.Section, High Court, Erode.

G.K.ILANTHIRAIYAN.J,

https://www.mhc.tn.gov.in/judis/

C.R.P.(N.P.D).No.3556 of 2018

Lpp

C.R.P.(PD) No. 3556 of 2018 and CMP Nos.19951 of 2018 & 10754 of 2021

27.07.2021

https://www.mhc.tn.gov.in/judis/