Madras High Court
Manikandan vs Vasavi on 10 November, 2021
CMA No.3206 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.11.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A.No.3206 of 2021
Manikandan ... Appellant
-vs-
Vasavi ... Respondent
Civil Miscellaneous Appeal filed under Section 19 of the Family
Court Act, 1984, against the Fair and decreetal order passed by the
learned Additional Principal Judge, Family Court, Coimbatore, in
I.A.No.1 of 2019 in HMOP.No.410/2019 dated 18.01.2021.
For Appellant : Mr.C.B.Muralikrishnan
for M/s.V.Vijayakumar
For Respondent : ...
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CMA No.3206 of 2021
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
The matter was listed to-day under the caption, 'for admission.'
2. This Civil Miscellaneous Appeal has been directed against
the fair and decreetal order passed by the learned Additional Principal
Judge, Family Court, Coimbatore, passed in I.A.No.1 of 2019 in
HMOP.No.410/2019 dated 18.01.2021.
3. Learned Counsel appearing for the appellant-husband
assailing the findings and the conclusions reached by the learned
Family Court in ordering the payment of Rs.50,000/- to the
respondent-wife for her monthly maintenance and also for EMI to be
payable for the housing loan submitted that the appellant has married
the respondent, who was a divorcee with a female child, on
19.05.2020. While so, due to some matrimonial dispute that erupted
between them, the appellant-husband has filed a Divorce Petition in
HMOP.No.410/2019 before the Additional Principal Family Court,
Coimbatore, under Section 13(1) (i-a) of the Hindu Marriage Act,
1955, citing a reason that the respondent-wife has caused imminent
cruelty. During the pendency of the said HMOP.No.410/2019, the
respondent-wife has filed an interlocutory application in I.A.No.1/2019
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CMA No.3206 of 2021
seeking a sum of Rs.50,000/- towards her maintenance and
Rs.26,000/- towards the payment of EMI to clear her Housing Loan,
totalling a sum of Rs.76,000/- p.m. as the appellant is employed in
Fong Lee Metal Industries Private Limited, 127, Pioneer Road,
Singapore-639 594 as Mechanical Engineering Technician and drawing
a monthly salary of Rs.3,50,000/- and above. According to the
appellant, since the appellant has been punctually paying Rs.50,000/-
every month, even before the said I.A.No.1/2019 was filed by the
respondent-wife, the question of moving the said application does not
arise at all. More over, in the application seeking maintenance, the
respondent-wife has made a false pleading and although the
appellant, admittedly, has been working in a company in Singapore,
he is not getting the monthly salary as alleged by her. The learned
Family Court, overlooking the fact that she is entitled to get only
Rs.25,000/-, wrongly accepting her case for monthly maintenance,
has ordered a sum of Rs.50,000/- towards maintenance payable
within the 7th day of every succeeding English Calendar Month and the
learned Family Court has also observed therein that after the entire
alleged amount was settled, the amount paid as EMI shall be
proportionately reduced from the sum of Rs.50,000/- and also
directed the appellant to pay a sum of Rs.10,000/- towards litigation
expenses. This approach adopted by the learned Family Court is
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CMA No.3206 of 2021
unacceptable and unjustifiable. Therefore, the impugned order is
liable to be set aside, he pleaded.
4. Continuing his arguments, learned Counsel for the
appellant further submitted that when there were matrimonial
disputes already pending between the parties on the ground that the
respondent-wife has caused mental cruelty, adding fuel to fire, when
she has not even filed any document to show that she has been
paying any amount towards EMI for Housing Loan, directing the
appellant-husband to pay monthly maintenance of Rs.50,000/- to the
respondent to maintain her and also towards the EMI for Housing
Loan is uncalled for. Moreover, the learned Judge has failed to see
that the property was purchased by the appellant-husband jointly with
the respondent-wife and only the construction of the house was made
with the help of the housing loan and that was also paid by the
appellant without any default. The truthfulness of all these facts
would be revealed only during the trial. Therefore, an error has been
committed by the trial court by passing the impugned order, hence,
the same is liable to be interfered with.
5. We are unable to find any justification whatsoever in the
submissions of the learned Counsel for the appellant. The reason
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CMA No.3206 of 2021
being that firstly, it is not in dispute that the appellant having married
the respondent, who was a divorcee with one female child, facing
matrimonial dispute has filed HMOP.No.410/2019 before the learned
Additional Principal Family Court, Coimbatore, seeking divorce on the
ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act,
1955. During the pendency of the said case, the respondent-wife has
moved I.A.No.1/2019 seeking a sum of Rs.76,000/-, namely,
Rs.50,000/- p.m. towards maintenance and Rs.26,000/- p.m. towards
the EMI for the Housing Loan besides Rs.10,000/- towards litigation
expenses. In her application seeking maintenance, the respondent-
wife pleaded that when both the appellant and the respondent were
working in the same office, after love affair, they resolved to enter
into the matrimonial life. It was, at that time, the respondent-wife
was also having a child and she was stopped from coming to the
office. Therefore, she claimed that she was unemployed and to
maintain her and for the payment of EMI towards the housing loan,
the appellant-husband is liable to pay the monthly maintenance.
6. Secondly, the appellant-husband has also filed a counter
affidavit. A perusal of the same reveals that nowhere the appellant-
husband has denied the averment made by the respondent-wife that
his monthly salary is Rs.3,50,000/- and above. As a matter of fact,
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CMA No.3206 of 2021
when the respondent makes a claim that the appellant has been
receiving a monthly salary of Rs.3,50,000/- and above, it is the
bounden duty of the appellant-husband either to disprove the same
by making a specific denial or to admit the same. In the present
case, the appellant-husband although admitted his employment in
Fong Lee Metal Industries Private Limited, 127, Pioneer Road,
Singapore-639 594 has not come forward to produce a single salary
slip to show his monthly salary that clearly shows that he has failed to
discharge his obligation before the Family Court.
7. Thirdly, when the respondent has made a specific pleading
in her counter affidavit filed in the main HMOP and also in the
affidavit filed in I.A.No.1/2019 that the appellant has been receiving
a monthly salary of Rs.3,50,000/- and above, the non-denial of the
said allegation with substantial evidence will go to show that the said
averment is an admitted fact. The appellant has filed a counter
affidavit making a blank in respect of his salary and subsequently the
same was filled with handwriting showing the monthly salary at
Rs.90,000/-. Since, he has not produced the pay slip to substantiate
the said contention, that created a strong doubt. Moreover, when he
has received the impugned order, directing him to pay a sum of
Rs.50,000/- towards monthly maintenance, it is expected from him
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CMA No.3206 of 2021
that he should have filed the monthly salary slip atleast before this
Court to show that his salary is not Rs.3,50,000/- and above. As he
has failed to file the monthly salary slip which is a non-speaking
evidence before the trial court and also consistently before this Court,
it goes without saying that something wrong with him and he is not
willing to disclose his actual monthly salary. Fourthly, when the
appellant himself has admitted that the respondent wife alone has
been paying the EMI towards the housing loan at the rate of
Rs.26,000/-, we do not find any error in the impugned order directing
the appellant to pay a sum of Rs.50,000/- towards maintenance
including Rs.26,000/- towards EMI for Housing Loan because the
learned Family Court has also observed therein that after the entire
alleged amount was settled, the amount paid as EMI shall be
proportionately reduced from the sum of Rs.50,000/-. Therefore, for
the aforementioned reasons, we are unable to find any infirmity or
illegality in the fair and decreetal order passed by the learned
Additional Principal Judge, Family Court, Coimbatore, in I.A.No.1 of
2019 in HMOP.No.410/2019 dated 18.01.2021.
8. In the result, the Civil Miscellaneous Appeal fails and the
same is accordingly dismissed at the admission stage itself. No costs.
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CMA No.3206 of 2021
(T.R.J.,) (D.B.C.J.,)
tsi 10.11.2021
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
To
The Additional Principal Judge, Family Court, Coimbatore
C.M.A.No.3206/2021
10.11.2021
https://www.mhc.tn.gov.in/judis
CMA No.3206 of 2021
https://www.mhc.tn.gov.in/judis
