Madras High Court

Dhivyaa vs S.Arulselvam on 1 September, 2023

                                                                        Crl.R.C.Nos.560 & 782 of 2022
                                                                          and Crl.M.P.No.7988 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 01.09.2023

                                                     CORAM

                              THE HONOURABLE MRS. JUSTICE R. HEMALATHA

                                           Crl.R.C.Nos.560 & 782 of 2022
                                                        and
                                              Crl.M.P.No.7988 of 2022


                     Dhivyaa                   ... Petitioner in Crl.R.C.No.560/2022

                     S.Arulselvam              ... Petitioner in Crl.R.C.No.782/2022

                                                        Vs.

                     S.Arulselvam              ... Respondent in Crl.R.C.No.560/2022

B.Dhivyaa ... Respondent in Crl.r.C.No.782/2022

Prayer in Crl.R.C.No.560/2022 : Criminal Revision is filed under Section 397 & 401 Cr.P.C. to enhance the maintenance amount from Rs.20,000/- to Rs.40,000/- awarded in M.C.No.603/2015 on the file of the VI Additional Family Court, Chennai on 28.02.2022.

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

Prayer in Crl.R.C.No.782/2022 : Criminal Revision is filed under Section 397 r/w. 401 Cr.P.C. to set aside the orders dated 28.02.2022 in M.C.No.603/2015 on the file of the VI Additional Family Court, Chennai.

In Crl.R.C.No.560/2022 :

For Petitioner : Mr.R.Marudhachalamurthy For Respondent : Mr.V.Elangovan

In Crl.R.C.No.782/2022 :

                                  For Petitioner      : Mr.V.Elangovan
                                  For Respondent      : Mr.R.Marudhachalamurthy

                                                 COMMON ORDER

Challenge in these criminal revision cases is made to the orders

dated 28.02.2022 in MC No.603/2015 passed by the learned VI

Additional Principal Family Judge, Chennai. While Crl RC No.560/2022

is filed by the wife seeking enhancement of the maintenance amount

awarded by the trial court, the husband filed Crl.R.C.No.782/2022 to set

aside the same.

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

2.For the sake of convenience the parties are referred to by

their names.

3.Dhivyaa and Arulselvam got married on 15.02.2013 at

Vadapalani Murugan Temple, Chennai as per the Hindu Rites and

Customs. After the marriage, the couple was initially living in a joint

family with the parents of Arulselvam and thereafter, moved to a separate

house at Pallikaranai. On 12.06.2013, the parents of Arulselvam came

down to Pallikaranai and created problems in the family. On 14.12.2013,

at the instigation of his mother, Arulselvam pulled his wife Dhivyaa by

catching hold of her hair and threatened her with dire consequences

brandishing a knife. Therefore, Dhivyaa had to leave the matrimonial

home on the same day. She thereafter, filed a petition in O.P. 327/2015

for restitution of conjugal rights under Section 9 of the Hindu Marriage

Act, 1955 against her husband which is pending before the VI Additional

Principal Family Court, Chennai. In the meanwhile, the husband filed a

petition in O.P. 4264/2014 seeking to dissolve the marriage under

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

Section 13 (1) (i-a) of the Hindu Marriage Act. The same was allowed

by the VI Additional Principal Family Court, Chennai on the ground of

'irretrievable breakdown of marriage'.

4. In the maintenance case, Dhivyaa had contended that her

husband is working as an Assistant Manager in TCS earning a sum of

Rs.1,00,000/- per month and in addition to that, he is also a business

partner in Roshan Tours and Travels at Arumbakkam, Chennai.

According to her, he owns several immovable properties in and around

Chennai, Tharamangalam and Salem. Her further contention is that she is

unable to maintain herself and therefore, she prayed for granting monthly

maintenance of Rs.40,000/- to her. Arulselvam filed a detailed counter

denying all the allegations of his wife and the learned Trial Court Judge

allowed M.C.No.603/2015 by granting a sum of Rs.20,000/- per month

to the petitioner/wife towards maintenance. The Trial Court Judge further

directed the respondent/husband to pay the maintenance amount on or

before the 10th day of every English calender month and to pay arrears

within a period of three months. Aggrieved over the same, the husband

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

filed Crl.R.C.No.782/2022 for setting aside the maintenance amount

awarded by the trial court while the wife filed Crl.R.C.No.560/2022

seeking enhancement of maintenance amount.

5. Mr.V.Elangovan, learned counsel appearing for Arulselvam

contended that Arulselvam is earning only a sum of Rs.30,000/- per

month and with that amount he has to maintain his old aged parents and

therefore, he is not in a position to pay a sum of Rs.20,000/- per month to

Dhivyaa, his wife.

6. Per contra, Mr.R.Marudhachalamurthy, learned counsel

appearing for the wife contended that Arulselvam is actually working in

Tata Consultancy Services, which was admitted by him before the trial

court and even during the year 2017, his salary was Rs.40,000/- per

month. His further contention is that he is a partner in Roshan Tours &

Travels and is fetching a sizeable amount through the said business. He

also contended that after getting divorce from the trial court, the husband

had given his profile in 'Malar Kalyanamalai Matrimony' stating that he

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

is an MBA graduate and working as a Manager in a private concern,

Chennai earning a sum of Rs.60,000/- per month. He would therefore

contend that the maintenance amount awarded by the trial court judge

should be enhanced to Rs.40,000/- per month.

7. It is pertinent to point out that the respondent / husband did

not adduce any documentary evidence to show his actual monthly

income. In this regard, the learned trial court judge in his order had relied

on the decision in Rajnesh vs. Neha reported in (2021) 2 SCC 324 in

which the following guidelines were issued :

"Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise of our powers Under Article 136 read with Article 142 of the Constitution of India:

(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings, including pending proceedings before the concerned Family Court/District Court/Magistrate's Court, as the case may be, throughout

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

the country;

(b) The Applicant making the claim for maintenance will be required to file a concise application accompanied with the Affidavit of Disclosure of Assets;

(c) The Respondent must submit the reply alongwith the Affidavit of Disclosure within a maximum period of four weeks. The Courts may not grant more than two opportunities for submission of the Affidavit of Disclosure of Assets and Liabilities to the Respondent. If the Respondent delays in filing the reply with the Affidavit, and seeks more than two adjournments for this purpose, the Court may consider exercising the power to strike off the defence of the Respondent, if the conduct is found to be wilful and contumacious in delaying the proceedings.7 On the failure to file the Affidavit within the prescribed time, the Family Court may proceed to decide the application for maintenance on basis of the Affidavit filed by the Applicant and the pleadings on record;

(d) The above format may be modified by the concerned Court, if the exigencies of a case require the same. It would

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

be left to the judicial discretion of the concerned Court, to issue necessary directions in this regard.

(e) If apart from the information contained in the Affidavits of Disclosure, any further information is required, the concerned Court may pass appropriate orders in respect thereof.

(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party Under Order XI of the Code of Civil Procedure; On filing of the Affidavit, the Court may invoke the provisions of Order X of the Code of Civil Procedure or Section 165 of the Evidence Act 1872, if it considers it necessary to do so; The income of one party is often not within the knowledge of the other spouse. The Court may invoke Section 106 of the Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are within the personal knowledge of the party concerned.

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

(g) If during the course of proceedings, there is a change in the financial status of any party, or there is a change of any relevant circumstances, or if some new information comes to light, the party may submit an amended/supplementary affidavit, which would be considered by the court at the time of final determination.

(h) The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding Under Section 340 Code of Criminal Procedure, and for contempt of Court.

(i) In case the parties belong to the Economically Weaker Sections ("EWS"), or are living Below the Poverty Line ("BPL"), or are casual labourers, the requirement of filing the Affidavit would be dispensed with.

(j) The concerned Family Court/District Court/Magistrate's Court must make an endeavour to decide the I.A. for Interim Maintenance by a reasoned order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been filed before the court.

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

(k) A professional Marriage Counsellor must be made available in every Family Court.

The above directions are issued in exercise of powers under Article 142 of the Constitution: The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending proceedings before the Family Court / District Court / Magistrates Court concerned, as the case may be, throughout the country."

8. A perusal of the records shows that Arulselvam had stated

that Roshan Tours and Travels is owned by his parents and that he is not

a partner in the said business. However, he was working as an Assistant

Manager in Tata Consultancy Services and subsequently resigned on

20.12.2017. It is an admitted fact that he is presently working for another

private concern. Though it is stated that his salary is only Rs.40,000/- per

month no documentary evidence is adduced in this regard.

9. Normally, a person would switch over to another job for

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.560 & 782 of 2022 and Crl.M.P.No.7988 of 2022

betterment of his career prospects and for getting higher pay scales. In

the instant case, Arulselvam was employed in Tata Consultancy Services

earning a sum of Rs.40,000/- per month, even in the year 2017.