Madras High Court
Antony Peter Leo vs Annes … on 2 November, 2022
C.M.A.No.1440 of 2022
and C.M.P.No.10561 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1440 of 2022
and C.M.P.No.10561 of 2022
Antony Peter Leo, …Appellant
Vs.
Annes …Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of Family
Court Act, against the fair and decreetal order of the Learned V-Additional
Family Court, Chennai dated 30.10.2021 in I.D.O.P.No.2451 of 2018.
For Appellant : Mr.T.Sivagnanasambadan
For Respondent/Caveator : Mr.V.M.Venkatramana
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and C.M.P.No.10561 of 2022
JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN,J.)
The above Civil Miscellaneous Appeal is filed against the order passed in
I.D.O.P.No.2451 of 2018 dated 30.10.2021 by the learned V Additional Family
Court Judge, Chennai.
2(a).The Appellant filed a petition for Divorce under Section 10(1) (ix) &
(x) of the Indian Divorce Act praying for divorce on the ground of cruelty and
desertion and non consummation of marriage. The appellant had alleged that
differences arose between him and the respondent. The respondent never
allowed the appellant to have physical relationship and hence, the marriage was
not consummated. He has made various allegations with regard to cruelty and
desertion.
(b) The respondent herein filed a counter denying the allegations made
by the appellant and also stated that it was the appellant who was guilty of
cruelty, desertion and non-consummation of the marriage. She prayed for
divorce on the ground that she made a Counter Claim for Divorce making
allegations against the appellant. She made a counter claim for divorce making
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allegations against the appellant. She also prayed for permanent alimony of
Rs.91,91,000/- (Rupees Ninety One Lakhs Ninety One Thousand only)
(c) The learned Trial Judge found that the Appellant had not established
the desertion of the respondent and infact it is appellant who deserted at the
respondent. Hence, the learned Judge after discussing the evidence and
pleadings on record granted Divorce on the basis of the counter claim made by
the respondent and dimissed I.D.O.P.No.2451 of 2018 filed by the Appellant.
The learned Trial Judge also found that the respondent was entitled to
permanent alimony of Rs.72,00,000/- (Seventy Two Lakhs only)
3.Aggrieved by the dismissal of his Divorce Petition and grant of
alimony to the respondent, the appellant has preferred the above appeal.
4. Heard, Mr.T.Sivagnanasambandan for the appellant and
Mr. V.M.Venkatramana for the respondent.
5.During the course of the arguments, the learned counsel for the
appellant submitted that since the Divorce Decree has been passed on the
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C.M.A.No.1440 of 2022
and C.M.P.No.10561 of 2022
counter claim of the respondent, he would not press this appeal with regard to
the dismissal of his Divorce Petition in I.D.O.P.No.2451 of 2018 and made an
endorsement to that effect. However, he is aggrieved by the grant of permanent
alimony of Rs.72,00,000/- (Rupees Seventy Two Lakhs only) to the respondent.
The learned counsel for the appellant submitted that though both the parties
have let in evidence with regard to status of the parties and filed affidavit of
assets and liabilities, the learned Judge has not discussed the assets and
liabilities and not furnished reasons for holding that the appellant is liable to
pay a sum of Rs.72,00,000/- (Rupees Seventy Two Lakhs Only) as permanent
alimony to the respondent.
6.The learned counsel for the respondent submitted that though there is
no discussion as to how the learned judge arrived at Rs.72,00,000/- (Rupees
Seventy Two Lakhs only) as permanent alimony to the respondent, he has
produced evidence to show that the respondent is entitiled for Rs.91,91,000/-
(Rupees Ninety One Lakhs Ninety One Thousand only) as claimed in her
counter claim.
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7.We find that the trial Judge has passed a decree of divorce on the basis
of the Counter claim of the respondent. The Appellant's petition for divorce has
been dismissed. The learned counsel for the appellant submitted that though he
had challenged the order of the trial Judge dismissing his divorce petition, he
would confine his submissions only with regard to the quantum of alimony
granted to the respondent. The learned counsel also made an endorsement to
that effect. In view of the same, the order passed by the learned Judge
dismissing the I.D.O.P.No.2451 of 2018 is confirmed.
8.As regards alimony, we find that no reason has been furnished by the
learned Trial Judge for fixing Rs.72,00,000/- (Rupees Seventy Two Lakhs only)
as permanent alimony payable to the respondent. The learned Judge has merely
stated that the parties have filed affidavit of assets and liabilities and passed
the following order :
“Considering the Medical expenses of the respondent
the petititoner is directed to pay permanent alimony. The
respondent is entitled to maintenance under Section 37 of the
Divorce Act, 1869 to the tune of Rs.72,00,000/- as permanent
alimony.”
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9.Apart from the above, we see that there is no discussion as to how the
learned Judge has arrived at Rs.72,00,000/- (Rupees Seventy Two Lakhs only)
as permanent alimony payable to the respondent. The details of the affidavits
of assets and liabilites have also not been elicited in the order passed by the
learned Judge. Therefore, we are of the view that this is a fit case to direct the
learned Judge to consider the quantum of alimony afresh on the basis of the
evidence let in by the parties and the affidavit of assets and liabilities and
giving reasons for justifying the quantum.
10.Hence, the direction to pay the permanent alimony of Rs.72,00,000/-
(Rupees Seventy Two Lakhs only) to the respondent passed in I.D.O.P.No.2451
of 2018 alone is hereby set-aside. The other aspects of the order are confirmed.
Therefore, we remand I.D.O.P.No.2451 of 2018 to the learned V Additional
Judge Court to decide the quantum of alimony to be granted to the respondent.
The decree of Divorce granted in I.D.O.P.No.2451 of 2018 on the basis of
Counter Claim to the respondent shall remain undisturbed. It is also made clear
that it is open for both the parties to let in evidence justifying their respective
claims on the permanent alimony, if so advised.
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11.Both the learned counsel appearing for the appellant as well as the
respondent prayed for speedy disposal of the IDOP No. 2451 of 2018 with
regard to permanent alimony.
12.In view of the above submissions made by the learned counsels, the
learned V Additional Judge, Family Court, Chennai is directed to dispose of the
I.D.O.P.No.2451 of 2018 with regard to permanent alimony, as expeditiously as
possible, in any event, within a period of three (3) months from the date of
receipt of copy of this Judgment.
13.With the above observations, Civil Miscellaneous Appeal is partly
allowed. No costs. Consequently, the connected miscellaneous petition is
closed.
[V.M.V.,J] [S.M.,J]
02.11.2022
Index : Yes / No
dk
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and C.M.P.No.10561 of 2022
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
dk
To
1.The learned V Additional Family Court,
Chennai.
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No.1440 of 2022
and C.M.P.No.10561 of 2022
02.11.2022
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