Madras High Court
S.Santhosh Kumar vs Karkulali on 19 October, 2024
C.R.P.(PD).No.2097 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.2097 of 2024
S.Santhosh Kumar .. Petitioner
Versus
Karkulali .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decreetal order passed by the Family Court,
Cuddalore in I.A.No.221 of 2022, dated 03.02.2024.
For Petitioner : Mr.Ali Hassan Khan
For Respondent : Mr.P.Suresh Babu
ORDER
This Civil Revision Petition is at the instance of the husband. The
respondent is the wife. For the sake of convenience, the parties shall be
referred to as the husband and wife.
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2. The petitioner/husband solemnized his marriage with the
respondent on 24.08.2015. From the wedlock, a child was born on
08.07.2016. Due to disputes and differences, the parties separated on
20.11.2019. The husband filed a petition for restitution of conjugal rights
which came to be dismissed for default on 05.11.2020. Thereafter, the
parties filed police complaints before the All Women Police Station,
Cuddalore. That not bearing fruit, the husband presented H.M.O.P.No.334
of 2021 seeking for divorce on the grounds of cruelty before the Family
Court at Cuddalore.
3. The wife entered appearance and filed a detailed counter-affidavit.
Simultaneously, she took out an application for interim maintenance for
herself and her child. This application was received in I.A.No.221 of 2022.
The husband filed a detailed counter-affidavit. Both the parties did not file
their affidavit of assets and liabilities as directed by the Supreme Court of
India in Rajnesh Vs. Neha and Anr., (2021) 2 SCC 324. Being left with no
other option, the learned Family Judge at Cuddalore took up the application
for disposal.
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4. The husband and wife represented by their Counsels, made their
respective submissions. The wife filed Ex.P1 to Ex.P4. On the basis of the
submissions made by the Counsels and on the basis of the records, the
learned Trial Judge came to the conclusion that the husband should pay a
sum of Rs.50,000/- per month as interim maintenance for the wife and the
child. Aggrieved by the same, the present Civil Revision Petition has arisen
before this Court.
5. At the time of admission, this Court, while issuing notice, directed
the respondent to pay 1/3 rd of the amount of arrears. Pending the
proceedings, the husband paid a sum of Rs.1,41,666/- on 25.09.2024 and the
remaining amount of Rs.4,95,000/- was paid thereafter. Once the interim
order had been complied, I took up the revision for final disposal.
6. Heard Mr.Ali Hassan Khan, learned Counsel for the civil revision
petitioner and Mr.P.Suresh Babu, learned Counsel for the respondent.
7. Mr.Ali Hassan Khan states that as the parties did not file their
affidavit of assets and liabilities, the matter deserves a remand. To that end,
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he places reliance upon a judgment of the Supreme Court in Aditi Alias
Mithi Vs. Jitesh Sharma, 2023 SCC OnLine SC 1451. Mr.Ali Hassan
Khan urges that the wife has independent source of income as she is
qualified to be a lawyer. He then points out that the wife did not produce
any evidence before the Family Court to substantiate that her husband is
incurring expenses of Rs.1,00,000/- per month. In addition, he argues that
while the wife is demanding maintenance from him, she is not permitting
him to see his child.
8. Per contra, Mr.P.Suresh Babu draws my attention to the counter-
affidavit filed by the wife in H.M.O.P.No.334 of 2021 to point out that soon
after the marriage, the husband and his family members insisted that the
wife should stop her practice. Consequently, she stopped practicing in the
year 2015 and by the lapse of time, her entire clientele have faded away.
9. With respect to the quantum, Mr.P.Suresh Babu states that the
husband's father is a former Member of Legislative Assembly in the state of
Tamil Nadu and the family is running a CBSE institution in Cuddalore. He
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states that the maintenance has to be fixed with regard to the status that is
occupied by the family, to which, the wife is married.
10. He, then, turns to the records that were filed Mr.Ali Hassan Khan
namely, the income-tax returns for the Assessment Year 2021-2022 to the
Assessment Year 2024-2025 and states that all these returns were filed after
the Civil Revision Petition had been filed before this Court. Therefore,
Mr.P.Suresh Babu vehemently contends that none of these records should
be looked into as they were prepared for the purpose of the case.
11. In response, Mr.Ali Hassan Khan points out that the wife did not
produce any expenses for the child in order to demand monthly maintenance
of Rs.25,000/- for her.
12. I have carefully considered the submissions of both the sides and
have gone through the records.
13. It is not in dispute that the husband belongs to a well-known
family in the town of Cuddalore. His father is a former Member of
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Legislative Assembly in the state of Tamil Nadu. In addition, the family of
the husband is managing a school established by their family trust in the
town of Cuddalore.
14. With respect to the first point that is raised by Mr.Ali Hassan
Khan, on the non-filing of the affidavit of assets and liabilities, I have to
point out that despite several opportunities granted to the husband by the
Trial Court, he did not avail of the said opportunities. Having failed to avail
the said opportunities, it does not lie in the mouth of the husband to plead as
he did not file the affidavit of assets and liabilities, he is entitled for an order
of remand.
15. It is a settled position of law that a person cannot take advantage
of his own fault. If I were to accede to the request made by Mr.Ali Hassan
Khan, then, in a maintenance proceedings, a husband will not comply with
the directions given by the Supreme Court in Rajnesh's case (cited supra)
and suffer an order and thereafter, come before the High Court and plead
that since he did not file the affidavit of assets, the Court below should not
take the application for disposal.
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16. A reading of Section 24 of the Hindu Marriage Act, 1955 makes it
clear that where a wife is unable to maintain herself, she can take out an
application for interim maintenance. In the very judgment referred to
above, the Supreme Court held that it is the sacrosanct duty of the husband
to maintain his wife and child. For the very fact that the wife is capable of
generating income, it does not mean that a Court cannot order maintenance.
Furthermore, in this case, the wife specifically pleaded that the family of the
husband insisted that she should stop her practice soon after the marriage.
When a lawyer goes out of practice, whether she suspends her practice or
not, the clientele is not going to wait till she is ready to resume her practice.
If an Advocate stops practicing, the clients will vanish faster than the
morning dew in the Sahara desert. Therefore, the plea that the affidavit of
assets and liabilities was not filed and the wife is capable of generating
income does not appeal to me.
17. Insofar as the quantum is concerned, I started this judgment
pointing out that the family of the husband is one of the preeminent families
in the town of Cuddalore. As to how maintenance should be ordered, was
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settled by the Delhi High Court in Bharat Hegde Vs. Saroj Hegde, 2007
SCC OnLine Del 622. The Delhi High Court held that a party is entitled to
be maintained in the same status as she would have been in case she had
continued to reside in the matrimonial home. When the family of the civil
revision petitioner is holding a preeminent status in the society, the quantum
of the maintenance that is fixed should also be in the same state.
18. To a certain extent, I have to agree with the submission of Mr.Ali
Hassan Khan that the wife did not produce any evidence in order to prove
that she is expending a sum of Rs.1,00,000/- per month. Perhaps, that is the
reason why the Court did not allow the application as prayed for, but,
ordered interim maintenance of Rs.50,000/-. At this stage, Mr.Ali Hassan
Khan refers to the income-tax records that were filed along with the typed
set of papers. As rightly contended by Mr.P.Suresh Babu, all these records
have come into being pending the Civil Revision Petition. Furthermore,
what has been produced is only the income-tax returns filed by the husband.
The final order of assessment that would be passed by the Income Tax
Department, has not been produced before the Court.
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19. Even with respect to the returns that are produced,
(i) the filing for the Assessment Year 2021-2022 is on 26.03.2024;
(ii) the filing for the Assessment Year 2022-2023 is on 27.03.2024;
(iii) the filing for the Assessment Year 2023-2024 is on 29.03.2024.
It is only the assessment for the Financial Year 2024-2025 that has been
filed on time on 28.07.2024. It seems that the husband maintained his
record of default in payments to the wife even to the Income Tax
Department. As all these income-tax records have come in pending the
litigation, I am persuaded to accept the submission of Mr.P.Suresh Babu
that no reliance can be placed upon the same.
20. In fact, the wife produced the business card of the husband to
substantiate that he is working as an Executive Director of a Company
styled Sudhakar Chemicals (P) Ltd., situated at SIPCOT Industrial
Complex, Cuddalore-607 005. She has also pointed out that the husband is
a proprietor of Sri Krishna Sai Polymers at Kattukuppam at Puducherry.
Apart from a bold denial of the statement, the husband is not able to state as
to how, when he represented his wife in the year 2015, that he was a
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Director in Sudhakar Chemicals (P) Ltd., today, he pleads that he is
absolutely unemployed.
21. Mr.Ali Hassan Khan invites my attention to a certificate that was
issued by one Mr.V.Srinivasan, practicing Company Secretary to state that
the husband is not even a shareholder in Sudhakar Chemicals (P) Ltd., and
therefore, this would substantiate his case that he has nothing to do with the
said institution. A perusal of the affidavit shows that the wife did not allege
that the husband is a shareholder. Per contra, she pleaded that he is an
Executive Director of the institution. In addition, the certificate of the
practicing Company Secretary, referred to by Mr.Ali Hassan Khan, was
issued on 04.04.2024, that too is a certificate which came in after this Civil
Revision Petition has commenced, it only lists out the shareholders. It does
not state as to who are the directors.
22. One point that is urged by Mr.Ali Hassan Khan deserves
acceptance. He points out that the child is aged about 7 years and it would
not be possible for the child to spend a sum of Rs.25,000/- per month.
Taking that aspect into consideration, at the same time considering the
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status of the parties, I am inclined to modify the order passed by the Family
Court, Cuddalore. The amount of Rs.25,000/- granted to the child is
reduced to Rs.20,000/- per month, by reducing a sum of Rs.5,000/-.
23. Mr.Ali Hassan Khan states that the wife is not permitting the
husband to see the child. Mr.P.Suresh Babu refutes this statement and states
that the husband never made an attempt to come and see the child. Be that
as it may, since Mr.P.Suresh Babu has agreed that the husband can visit the
child and since the residence of the wife is at Bagoor, there shall be a
direction to the wife to permit the husband to visit the child and spend some
quality time with her on the second and fourth Sundays of every month
between 10.00 A.M to 1.00 P.M.
24. If the arrears, being calculated at the rate of Rs.45,000/- per
month, are cleared by the husband, less the amount of Rs.5,16,666/- paid
pending the Civil Revision Petition, the learned Family Judge, Cuddalore is
requested to take up the Original Petition for final disposal. The learned
Family Judge will note that, this being an order of maintenance, if the
husband defaults even for one month, he should not be permitted to
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continue with the proceedings further. If the default continues, despite an
intimation to the husband regarding the default, the learned Trial Judge is
free to dismiss H.M.O.P.No.334 of 2021. However, if the husband clears all
the arrears and continues to pay the amount of Rs.45,000/- fixed by this
order, the Family Court shall take up H.M.O.P.No.334 of 2021 for disposal
and shall conclude the proceedings on or before 30.04.2025.
25. With the above modification, this Civil Revision Petition stands
disposed of. No costs.
19.10.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The Family Court,
Cuddalore.
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V.LAKSHMINARAYANAN, J.
grs
19.10.2024
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