Rathinavel vs Suseela
2021 Latest Caselaw 20645 Mad

                                                                          C.R.P.(PD).No.3341 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 07.10.2021

                                                        CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.R.P.(PD)No.3341 of 2018
                                               and C.M.P.No.18955 of 2018

                     Rathinavel                                                  .. Petitioner
                                                             Vs.

                     Suseela                                                     .. Respondent

                     Prayer: Civil Revision Petition filed under Article 227 of the
                     Constitution of India, against the fair and decreetal order dated
                     07.08.2018 made in I.A.No.86 of 2017 in H.M.O.P.No.167 of 2017 on
                     the file of the Sub Court, Tirupattur, Vellore District.

                                           For Petitioner     : Mr.Pa.Sudesh Kumar

                                           For Respondent     : Mr.Elizabeth Ravi

                                                        ORDER

This Civil Revision Petition is filed against the fair and decreetal

order dated 07.08.2018 made in I.A.No.86 of 2017 in H.M.O.P.No.167 of

2017 on the file of the Sub Court, Tirupattur, Vellore District.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

2.The petitioner filed H.M.O.P.No.167 of 2017 on the file of the

Sub Court, Tirupattur, Vellore District, against the respondent and one

Jessy, for divorce on the ground of adultery and for seeking maintenance.

The respondent is contesting the said O.P. While H.M.O.P is pending, the

respondent filed I.A.No.86 of 2017, claiming Rs.10,000/- per month as

maintenance and Rs.10,000/- as litigation expenses. According to the

respondent, she is unemployed and has no means to maintain herself as

well as to conduct the case. The petitioner is working in Railways and

getting a salary of Rs.50,000/- per month. The petitioner filed counter

affidavit and denied that he is earning Rs.50,000/- and submitted that he

is getting only Rs.12,500/-, after deduction. He is a sugar patient and is

meeting out medical expenses every month. Whereas, the respondent is

owning a house property and getting rental income. Further, the

respondent left the matrimonial home voluntarily, living in adultery with

the said Jessy/2nd respondent in H.M.O.P. and leading a luxurious life.

The respondent already filed M.C.No.18 of 2017 on the file of the

Judicial Magistrate-I, Tirupattur, claiming maintenance of Rs.30,000/-

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

per month. She suppressed the said fact and filed the present I.A. and

hence, she is not entitled for any maintenance. Before the learned Judge,

the petitioner examined himself as R.W.1 and marked 5 documents as

Exs.R1 to R5. The respondent did not let in any evidence. The learned

Judge, considering the averments in the affidavit, counter affidavit, oral

and documentary evidence let in by the petitioner, allowed the I.A.,

directing the petitioner to pay a sum of Rs.5,000/- per month as

maintenance and Rs.5,000/- as litigation expenses to the respondent.

3.Against the said order 07.08.2018 made in I.A.No.86 of 2017 in

H.M.O.P.No.167 of 2017, the petitioner has come out with the present

Civil Revision Petition.

4.Though the petitioner has raised various grounds in the Civil

Revision Petition, at the time of arguments, the learned counsel

appearing for the petitioner restricted his submission only on the ground

that the respondent who is leading adulterous life and is having illicit

intimacy with various persons and left the petitioner when she was

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

caught red- handed and that in view of the adulterous life of the

respondent, she is not entitled for any maintenance. In support of his

contention, he relied on the judgment of the Division Bench of this Court

reported in (2021) 3 MLJ 82 [Perumal Vs. Saraswathi], wherein the

relevant paragraph reads as follows:

“5.We are unable to agree with the above said submissions of the learned counsel for the respondent/wife. The appellant/husband has filed F.C.O.P.No.409 of 2016 under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of marriage that took place on 10.03.1997 on the ground of adultery and cruelty by taking a stand that his wife has committed an offence of adultery, therefore, the marriage is to be dissolved under Sections 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955. Adultery means a voluntary sexual intercourse between a married person and someone other than that person's current spouse or partner.

When the appellant/husband has raised serious objections of adulterous affairs of his wife and sought for divorce on the said ground, we are of the considered view, learned Family Court ought to have taken up both matters together, namely, divorce petition and maintenance application, the reason being, if for any reason, if the appellant/husband is able to substantiate during the trial that the divorce petition filed under Section 13(1)(i) and 13(1)(ia) of the Hindu Marriage Act, 1955, is maintainable, then the question of payment towards interim

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

maintenance would become redundant.

6. Further, by virtue of Section 21 of the Civil Procedure Code, when an objection with regard to the jurisdiction of the trial Court is raised by any one of the parties, such objection raised shall be dealt with at the earliest possible opportunity. The same analogy may also apply in this case as well, for the reason being that when the husband has filed a C.M.A.No.3126 of 2019 divorce petition under Section 13(1)(i) of the Act, alleging that his wife is leading an adulterous life with one Ramesh/second respondent in divorce petition, that has caused cruelty under Section 13(1)(ia) of the Act, in all fairness, learned Family Court ought to have decided the allegation of adultery raised in the divorce petition as well as maintenance application together. It is trite law that during the subsistence of the first marriage, the wife cannot live in adulterous life with another person. In the event of substantiating the allegation of adulterous life, the wife will be loosing her right to claim maintenance. On the other hand, if maintenance is paid for one or two years and finally, if the husband is able to substantiate his allegation that his wife is leading adulterous life, then the payment of maintenance to an undeserving party would become meaningless. Therefore, finding fault with the reasons and conclusions reached by the learned Family Court in not deciding the serious allegations made in the divorce petition first and then deciding Interlocutory Application seeking maintenance second, the impugned fair and decreetal order passed by the learned Family Court is set aside. Consequently, the matter is remitted back to the learned Family Court to decide both the cases,

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

namely, divorce petition and Interlocutory Application, together in the manner known to law within a period of three months from the date of receipt of a copy of this judgment.”

5.The learned counsel appearing for the respondent submitted that

the petitioner has filed H.M.O.P., making false allegation that the

respondent is leading adulterous life and treating the petitioner with

cruelty. The respondent has filed counter affidavit, denying various

allegations made by the petitioner and contended that H.M.O.P. is itself

without merits. In the I.A. filed by the respondent, the petitioner has to

produce the evidence and prove that she is leading adulterous life. The

learned Judge considered entire materials and awarded Rs.5000/- per

month as maintenance. The facts in the judgment of the Division Bench

of this Court relied on by the learned counsel appearing for the petitioner

is not applicable to the facts of the present case and prayed for dismissal

of the Civil Revision Petition.

6.Heard the learned counsel appearing for the petitioner as well as

the respondent and perused the entire materials available on record.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

7.The petitioner is seeking divorce from the respondent on the

ground of adultery. The respondent has filed counter statement and is

contesting the H.M.O.P. The respondent, after two years of filing

H.M.O.P. and after one year of filing counter statement, filed the present

I.A., for interim maintenance. The learned Judge, considering the income

of the petitioner, awarded interim maintenance of Rs.5,000/- per month

and Rs.5,000/- towards litigation expenses. The learned Judge failed to

consider that when divorce is sought for on the ground of adultery, the

respondent wife is not entitled to maintenance when the petitioner

husband proves adultery. While considering the I.A. for interim

maintenance, the learned Judge failed to consider that the petitioner has

alleged adultery and the respondent herein is living with the 2nd

respondent in H.M.O.P. in adulterous life. The issue whether the

respondent wife is entitled to interim maintenance when the allegation of

adultery is made against wife by the husband, came up for consideration

before the Division Bench of Court reported in (2021) 3 MLJ 82,

referred to above. In the said judgment, the Division Bench of this Court

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

held that when an allegation of adultery is made against the wife, the

Court must decide the said issue at the earliest point and when wife files

an application for interim maintenance, the same has to be considered

along with the main O.P and suitable orders must be passed and remit the

matter to the Family Court. The ratio in the said judgment is squarely

applicable to the facts of the present case. In view of the judgment of the

Division Bench of this Court referred to above, the impugned order of

the learned Judge dated 07.08.2018 made in I.A.No.86 of 2017 in

H.M.O.P.No.167 of 2017, in so far as the direction of interim

maintenance of Rs.5,000/- per month alone is set aside and the petitioner

is entitled to pay the litigation expenses of Rs.5,000/- to the respondent.

The said I.A.No.86 of 2017 is remitted back to the learned Subordinate

Judge, Tirupattur, Vellore District and the learned Judge is directed to

consider the said I.A. along with the impugned H.M.O.P.No.167 of 2015

and based on the decisions in the said H.M.O.P, pass appropriate orders

in the I.A. for interim maintenance. H.M.O.P. is of the year 2015. The

learned Subordinate Judge, Tirupattur, Vellore District, is directed to

dispose of the said H.M.O.P and application, as expeditiously as

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

possible, in any event, within a period of six months from the date of

receipt of a copy of this order.

With the above direction, the Civil Revision Petition is partly

allowed. No costs. Consequently, connected Miscellaneous Petition is

closed.

07.10.2021 Index :: Yes/No gsa

To

The Subordinate Judge, Tirupattur, Vellore District.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD).No.3341 of 2018

V.M.VELUMANI, J.

gsa

C.R.P.(PD)No.3341 of 2018

07.10.2021

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