Madras High Court
Dr.Ma Yu Teh vs Theresa Shih You Shieh on 18 October, 2022
C.M.A.No.3171 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.10.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.3171 of 2021
and
C.M.P.Nos.17942 of 2021 & 14019 of 2022
Dr.Ma Yu Teh ... Appellant
Vs.
Theresa Shih You Shieh ... Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the
Family Court Act to set-aside the fair and decreetal order passed in I.A.No.1
of 2019 in O.P.No.3262 of 2019 dated 07.09.2021 on the file of the learned II
Additional Principal Judge, Family Court, Chennai.
For Appellant : Mr.S.Parthasarathy
For Mr.B.Damodaran
For Respondent : Mr.Aravind Athithan
1/11
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C.M.A.No.3171 of 2021
JUDGMENT
(Judgment of the Court was delivered by SUNDER MOHAN,J.)
The appeal is directed against the fair and decreetal order passed in
I.A.No.1 of 2019 in O.P.No.3269 of 2019 by the learned II Additional
Principal Judge, Family Court, Chennai, dated 07.09.2021.
2.The brief facts leading to the filing of the above appeal are as
follows:
a. The appellant is the husband of the respondent herein and the
marriage was solemnized on 06.02.2013 in Chennai. Both the appellant and
the respondent were divorcees of their previous marriage and have children
out of their previous marriage. Ever since the date of marriage there was
difference of opinion and quarrel between the appellant and the respondent. In
the year 2018, the respondent left the matrimonial home. It is the case of the
respondent that the appellant was not interested in a peaceful matrimonial life
and he was only interested in the money received by the respondent as
alimony from her ex-husband which was Rs.7,00,000/-(Rupees Seven Lakhs)
in cash and a plot of land in Coimbatore. It is the respondent’s case that the
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C.M.A.No.3171 of 2021
appellant forced her to sell the land in Coimbatore and spent the same lavishly
in purchasing other properties and for holidays abroad. She filed the petition
for divorce under Section 10(1)(x) of the Indian Divorce Act 1869, on the
ground of cruelty in O.P.No.3262 of 2019.
b. Pending the divorce petition, the respondent filed I.A.No.1 of 2019
praying for the monthly maintenance of Rs.30,000/- and for past dues of
Rs.4,50,000/- for the period of 15 months during which the appellant had
abandoned the respondent. It is her case that the appellant had forced her to
sell the land in Coimbatore and mis-used the sale proceeds. She further
claimed that the appellant had siphoned off her funds to the tune of
Rs.24,88,426/-. The appellant is well to do and owns a property. He is
practising as a Dentist and he has his own clinic at Evening Bazaar Road,
Chennai. He is earning an income of Rs.2,00,000/- per month and also a
rental income of Rs.70,000/- per month. However, in his Income Tax returns,
he is showing a lesser amount and most of the transaction dealt with by him
are in cash. She is suffering from spinal injury and Hepatitis B infection and
this was transmitted to her by the appellant, she is unemployed and hence
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C.M.A.No.3171 of 2021
prayed for maintenance.
c. The appellant filed a counter denying all the allegations and
averments made in the application for maintenance. He denied that he is
earning a monthly income of Rs.2,00,000/- and receiving rental amount of
Rs.70,000/- per month. He pleaded in the counter, that he is only earning
Rs.25,000/- per month and with that income he had to maintain his aged
father and two sons through first wife and for the medicines for his own
ailment. The appellant further pleaded that the respondent is well to do. He
would further state in his counter that it was the appellant who was diagnosed
Hepatitis B first he was infected by her. He has also denied the allegations of
siphoning off funds made by the respondent. He would further state that the
respondent has stayed in the property and she has not let the appellant to
enter the property.
d. The learned II Additional Family Court, Chennai, after considering
the pleadings and the documents submitted by the parties found that the
earning of the appellant was Rs.5,46,930/- for the year 2018-2019 and
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C.M.A.No.3171 of 2021
Rs.4,55,710/- for the year 2019-2020. These amounts were reflected in the
Income Tax Returns, Ex.R.7. The learned Judge therefore, found that since the
respondent had no source of income to maintain herself and the appellant is
practicing as a Dentist, he had sufficient means to maintain the respondent
and it was his duty to maintain the respondent and fixed the maintenance
amount as Rs.10,000/- per month.
2. Heard, Mr.S.Parthasarathy, learned counsel for the appellant and
Mr.Aravind Athithan, learned counsel for the respondent.
3. The learned counsel for the appellant submitted that the respondent
had already obtained more than Rs.1 Crore from her ex-husband as alimony
and she is well to do and she had property of her own and this petition filed
for interim maintenance is only to harass the appellant and it is not a genuine
application for maintenance. She had independent sources of income and
receiving help from her sister in U.S. Since she has already received
substantial money from her ex-husband, she is attempting to do that to the
appellant.
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C.M.A.No.3171 of 2021
4. The learned counsel for the respondent submitted that admittedly, the
respondent is suffering from Hepatitis B infection and she has to spend
substantial amount for her treatment. It is also an admitted fact that the
respondent is unemployed and the appellant is working as a Dentist. Even as
per the Income Tax Returns, the appellant showed income of Rs.5,46,930/- for
the year 2018-2019 and Rs.4,55,710/- for the year 2019-2020. It is the matter
of common knowledge that the appellant as a Doctor would deal with cash
transactions and it is not correct to say that his income was only Rs.25,000/-
per month. The learned counsel further submitted that though the respondent
had not challenged the order fixing the maintenance of Rs.10,000/- she is also
aggrieved by the quantum and that even Rs.10,000/- is not sufficient to
maintain her.
5. We have perused the records and on consideration of the submission
on either side, we find that admittedly the appellant is working as a Dentist
and he is an Income Tax assessee. The respondent is unemployed and further
suffers from medical ailments and has to take continuous treatment. As
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C.M.A.No.3171 of 2021
regards the appellant's contention that the respondent had received substantial
money as alimony from her ex-husband, the respondent's case is that the
appellant had siphoned off substantial money and had forced her to take loan
for purchase of the flat. We are not going into the correctness of the
allegations and counter allegations in this regard at this stage. It is for the
Family Court to determine those issues, while deciding the Original Petition
for divorce. We find that as per Ex.R.7, the appellant is earning on an average
of Rs.5,00,000/- per annum. Even if we accept the said Returns as a true
reflection of his income, the average income of the appellant is approximately
Rs.40,000/- per month. We are of the view, pending the divorcé petition, the
appellant is bound to maintain the respondent.
6.Considering the facts and circumstances of the case and the income of
the appellant, we are of the view that the maintenance amount awarded by the
learned II Additional Family court, Chennai, is reasonable and hence, the
order of the learned single Judge does not call for any interference in this
appeal. The appellant is directed to pay the arrears of maintenance if any
within a period of three weeks from the date of receipt of a copy of this order
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C.M.A.No.3171 of 2021
and shall continue to pay the maintenance of Rs.10,000/- till the disposal of
O.P.No.3262 of 2019.
7.The learned II Additional Judge, Family Court, Chennai, is directed to
dispose O.P.No.3262 of 2019 as expeditiously as possible and in any event
within a period of four months from the date of receipt of a copy of this order.
8.With the above direction, this Civil Miscellaneous Appeal stands
dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
(V.M.V., J) (S.M., J)
18.10.2022
Index : Yes / No
vsn
To
The Additional Principal Judge,
Family Court,
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C.M.A.No.3171 of 2021
Chennai
https://www.mhc.tn.gov.in/judis
C.M.A.No.3171 of 2021
https://www.mhc.tn.gov.in/judis
C.M.A.No.3171 of 2021
V.M.VELUMANI,J.
and
SUNDER MOHAN,J.
vsn
C.M.A.No.3171 of 2021
and C.M.P.Nos.17942 of 2021 & 14019 of 2022
18.10.2022
https://www.mhc.tn.gov.in/judis
