Madras High Court
G.Sam William Carter vs S.Mariya on 21 October, 2024
C.R.P.(PD).No.4204 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.10.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.4204 of 2024
and C.M.P.No.23304 of 2024
G.Sam William Carter .. Petitioner
Versus
S.Mariya .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to allow the Civil Revision Petition thereby set aside the fair order
and decreetal order, dated 7th day of August, 2024 made in I.A.No.44 of
2021 in D.V.O.P.No.128 of 2019 on the file of the learned Principal District
Judge, Kancheepuram.
For Petitioner : Mr.A.R.Nixon
ORDER
This Civil Revision Petition arises against the order of the learned
Principal District Judge at Kancheepuram in I.A.No.44 of 2021 in
D.V.O.P.No.128 of 2019, dated 07.08.2024.
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2. The civil revision petitioner is the husband. The respondent/wife
initiated D.V.O.P.No.128 of 2019 seeking for divorce invoking Section
10(1)(x) of the Indian Divorce Act, 1869. Pending the litigation, she took
out an application in I.A.No.44 of 2021 seeking for interim maintenance of
Rs.30,000/- for the children and to pay the amount of Rs.17,68,500/- which
had been expended towards the children's education. The said application,
after receipt of a counter-affidavit, came to be allowed. Hence, this Civil
Revision Petition.
3. Heard Mr.A.R.Nixon, learned Counsel for the petitioner.
4. Mr.A.R.Nixon draws my attention to the order passed by this Court
in C.R.P.(PD).No.2449 of 2018, dated 25.03.2019 to urge that originally,
the wife filed O.P.No.4770 of 2015 seeking for divorce on the file of the VII
Additional Family Court at Chennai. He points out that the parties are
residents of Manapakkam which is outside the jurisdiction of the Family
Court at Chennai and therefore, he filed an application for objecting the
jurisdiction of the learned Family Judge to try the issue. He adds that after
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I.A.No.1178 of 2017 in O.P.No.4770 of 2015 was directed to be disposed of
by this Court, the respondent/wife withdrew the Original Petition and filed a
fresh proceeding before the District and Sessions Court at Kancheepuram.
5. He states that the children born from the wedlock, who are aged
about 16 and 19 respectively, have the habit of abusing the father and in
fact, had assaulted him on a couple of occasions and it was also
videographed. Apart from the submission, on the primary submission on
the maintenance, he states that the husband paid fees for the children which
had unfortunately not been accounted for by the learned District Judge. He
further points out that the affidavit of assets and liabilities that the wife has
to file in terms of the judgment of the Supreme Court in Rajnesh Vs. Neha
and Anr., (2021) 2 SCC 324, was not filed and the learned District Judge
ignored this fact and ordered the application. He argues that had the amount
paid by the civil revision petitioner, had been accounted for by the learned
District Judge, perhaps, he would have come to a conclusion that the
husband has to pay a sum of Rs.8,84,250/- and Rs.15,000/- per month
towards educational expenses of the children.
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6. I have carefully considered the submissions of Mr.A.R.Nixon.
7. There is no dispute that the petitioner entered into holy matrimony
with the respondent on 08.07.2022 at Cuddalore. Both the parties are
employed by the Police Department in the state of Tamil Nadu. The wife is
the Sub-Inspector of Police and the husband is a Head Constable. The
wedlock produced two children, a male and a female. The son was admitted
in S.R.V. Boys School at Namakkal and the daughter was admitted in Sri
Chaitanya Technology School at Manapakkam.
8. On account of the fact that the parties separated, the wife pleads
that the husband did not pay the school fees. She urged before the Court in
the Interlocutory Application that she bore the entire expenses for the
children. She quantified the figure at Rs.17,68,500/- and demanded the
husband to make good the payment made by her. In addition, she claimed
Rs.30,000/- per month towards the educational expenses. The husband
claimed that his salary itself is Rs.30,000/- and he is not in a position to
make the payment as sought for. He filed a counter-affidavit pleading that
he is paying Rs.11,500/- towards E.M.I for the loan availed by him in
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addition to Rs.7,500/- as house rent and Rs.5,000/- for his medical
expenses.
9. If the figures that were given by the husband are added up, out of
his salary of Rs.30,000/-, he seems to be spending a sum of Rs.24,000/- only
on paying E.M.Is, house rent and medicines. He must be the husband, I
feel, who is a financial wizard to live with only Rs.6,000/- in his hands,
especially, when he is carrying out his onerous duties of being a Head
Constable. Be that as it may, the wife has shown that she spent a sum of
Rs.17,68,500/- to bring up the children. The very judgment that
Mr.A.R.Nixon relies upon in Rajnesh's case (cited supra) points out that it
is the sacrosanct duty of a husband to maintain his wife and children. This
duty continues even if the wife is educated and is capable of maintaining
herself.
10. Insofar as the plea of Mr.A.R.Nixon that the affidavit of assets
and liabilities was not filed by the wife is concerned, a perusal of the
Section 36 of the Indian Divorce Act, 1869 makes it clear that if the spouse
is unable to maintain herself, she can file an application for interim
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maintenance. Section 36 is wide enough in sweep to cover the maintenance
of children also. This is the interpretation that is given to Section 24 of the
Hindu Marriage Act, 1955 and for the mere fact that the parties are
Christians, it does not mean that the father is not liable to maintain the
children when Section 36 is invoked for the said purpose. In any event, the
learned District Judge is entitled to rely upon Section 151 of the Code of
Civil Procedure to order interim maintenance even if there is no specific
provision under the Indian Divorce Act, 1869.
11. With respect to the allegation that the affidavit of assets was not
filed, the answer is the relief that is sought for is for maintaining the
children and not for the wife herself. The wife, being a Sub-Inspector of
Police, did not seek for any maintenance from the husband. She only wants
the husband to perform his duty as the father of the two children. Therefore,
the fact that the wife did not file an affidavit of assets and liabilities does
not make any difference when the Court is dealing with an application for
maintenance of the children.
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12. Insofar as the plea that the amounts paid by the husband were not
accounted for, a perusal of the order shows that the husband did not produce
any evidence before the Court in order to substantiate that he did make any
payments to either Sri Chaitanya Technology School or to S.R.V. Boys
School, Namakkal. In the absence of any proof, I cannot accept the plea of
Mr.A.R.Nixon.
13. Apart from that, the learned Judge did not direct the husband to
pay the entire amount. He came to the conclusion that the husband and wife
have to divide the sums involved equally. Though the wife claimed a sum
of Rs.17,68,500/- and Rs.30,000/- towards maintenance, the learned District
Judge only ordered the husband to pay Rs.8,84,250/- and Rs.15,000/-
towards educational expenses. That is to say that the learned Judge divided
the amounts into two equal halves and only ordered the husband to pay his
share of the liability towards bringing up the children. In fact, the mother,
being a working woman, would have undergone great difficulties in order to
bring up the children which has unfortunately not been accounted by the
learned Judge.
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14. I do not find the order of the learned Judge to be unreasonable or
arbitrary or without jurisdiction. Hence, this Civil Revision Petition is
dismissed. In case, an Execution Petition is filed for the entire amount and
the husband is able to show that he bound to certain amounts for payments
towards school, I am sure that the learned District Judge, at the time of
dealing with the Execution Petition, will permit the husband to account for
the same. No costs. Consequently, connected miscellaneous petition is
closed.
21.10.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The Principal District Judge,
Kancheepuram.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
grs
21.10.2024
https://www.mhc.tn.gov.in/judis
