Madras High Court
E.Janarthanan ...Defendant / vs Kalaiselvi @ Tamilselvy on 23 January, 2023
A.S.No.63 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
A.S.No.63 of 2014
and M.P.No.1 of 2014
E.Janarthanan ...Defendant /Appellant
-Vs-
1.Kalaiselvi @ Tamilselvy
2.Devi (minor)
Aged about 11 years,
Rep. by her mother & next friend
Kalaiselvi @ Tamilselvy
3.Balaji (minor)
Aged about 9 years,
Rep. by her mother & next friend
Kalaiselvi @ Tamilselvy ...Plaintiffs /Respondents
Prayer:- Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of C.P.C.,
against the judgment and decree dated 18.06.2013 made in O.S.No.42 of 2007
passed by the learned Family Court Judge, Puducherry.
For Appellant : Mr.P.Veeraraghavan
For R1 : Mr.K.Chandrasekaran
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A.S.No.63 of 2014
JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.,]
This appeal is preferred against the judgment and decree dated 18.06.2013
in O.S.No.42 of 2007 on the file of the learned Family Court Judge, Puducherry.
2.The plaintiffs are the wife and children of the defendant in the suit in
O.S.No.42 of 2007.
3.The respondents herein are the plaintiffs in O.S.No.42 of 2007 filed the
suit for maintenance for directing the defendant to pay a sum of Rs.5,000/- per
month as maintenance for the plaintiffs.
4.From the decree, it is seen that suit was filed on 02.11.2007. It appears
that the respondents filed an interim application in I.A.No.113 of 2013 for
interim maintenance and the Family Court has passed an order directing interim
maintenance in favour of the plaintiffs/respondents. Since the appellant/husband
failed to pay interim maintenance as directed by the Family Court during the
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A.S.No.63 of 2014
pendency of the proceedings, it appears that the plaintiffs filed an interim
application in I.A.No.113 of 2013 to strike of the defence raised by the defendant
in his written statement which was ordered by the Family Court on 03.06.2013.
Thereafter, the suit was taken up, and after finding that the appellant had not paid
interim maintenance and arrears as ordered by the Family Court, the suit was
decreed as prayed for, without an adjudication on merits and directing the
defendant to pay a sum of Rs.5,000/- per month as maintenance. The
defendant/appellant was permitted to deduct the amount paid by the defendant
towards interim maintenance during the pendency of the suit.
5.The learned counsel appearing for the appellant submitted that the
judgment and decree of the Family Court is not based on merits but based on the
previous order of the Family Court in I.A.No.113 of 2013 to strike of the defence
raised by the appellant.
6.It is true that the judgment and decree of the Family Court directing
interim maintenance was not based on merits, but as a consequence of an earlier
order of the Family Court in I.A.No.113 of 2013 striking out the defence raised
by the appellant on the ground that he had not complied with the direction of the
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A.S.No.63 of 2014
Family Court to pay interim maintenance during the pendency of the proceedings.
Though the appellant raised a ground in the Memorandum of Appeal that he has
complied with the order, no record is produced to show that he paid the arrears
of maintenance as directed by the Family Court.
7.From the reading of the plaint, it is seen that the marriage between the
appellant and the 1st respondent took place on 24.04.1995. Respondents 2 and 3
were born in Puducherry on 10.08.1996 and 13.06.1998 respectively. The suit
for maintenance was filed on 02.06.2007 and the claim of Rs.5,000/- towards
maintenance of wife and two children in the year 2007 is not a huge sum.
8.Having regard to the specific averments made in the plaint, the defendant
is cultivating 2 kanies of land and owns substantial properties apart from carrying
on business. It is stated that the minors have now become majors. However, the
1st respondent/wife is entitled to get maintenance. The appellant has produced
before this Court, the order passed in M.O.P.No.211 of 2007 filed by the
appellant/husband to show that the marriage is dissolved. Further the petition
filed by the 1st respondent/wife for restitution of conjugal rights in M.O.P.No.250
of 2007 is dismissed. Since the appellant has obtained a decree for divorce as
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A.S.No.63 of 2014
against the 1st respondent and the minors/sons of appellant have become majors,
the appellant may not be liable for future maintenance. However, this Court is
unable to find any ground to interfere with the judgment and decree of the Family
Court granting maintenance at the rate of Rs.5,000/- per month. Therefore, this
Court is not inclined to interfere with the judgment and decree of the Family
Court in O.S.No.42 of 2007. However the liability of the appellant to pay the
arrears of maintenance as directed by the Family Court shall be limited to the
period up to the decree granting divorce. It is open to the appellant to raise the
issue if any other claim is made by the respondents based on the decree in the
suit ignoring the legal implication of the decree for divorce which is decreed in
favour of the appellant.
9.In the result, the appeal suit stands dismissed subject to the limitation
indicated above. No costs. Consequently, connected miscellaneous petition is
closed.
[SSSRJ] [AANJ]
23.01.2023
cda
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A.S.No.63 of 2014
S.S.SUNDAR, J.,
AND
A.A.NAKKIRAN, J.,
cda
To
1.The Family Court Judge, Puducherry.
2.The Section Officer, VR Records,
High Court, Chennai.
A.S.No.63 of 2014
23.01.2023
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