Madras High Court
Shruthi Thilak vs Prabhu Thilaak on 20 September, 2024
C.R.P.(PD).No.3821 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.3821 of 2024
and C.M.P.No.20970 of 2024
Shruthi Thilak .. Petitioner
Versus
Prabhu Thilaak .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the order in I.A.No.6 of 2024, dated 04.06.2024 and to
direct the III Additional Principal Family Court at Chennai, to first hear and
dispose the petitioner's application in I.A.No.6 of 2024 in a time bound
manner, before proceeding with any further hearing in O.P.No.1320 of
2023.
For Petitioner : Mr.M.S.Niranjhan
For Respondent : Mr.C.Vigneshwaran,
for Mr.E.Bala Murugan
ORDER
Heard Mr.M.S.Niranjhan, learned Counsel for the civil revision
petitioner and Mr.C.Vigneshwaran, learned Counsel for Mr.E.Bala
Murugan, learned Counsel for the respondent.
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2. This Civil Revision Petition arises against the order passed by the
III Additional Principal Family Court, Chennai in a memo filed by the
respondent herein in I.A.No.6 of 2024 in O.P.No.1320 of 2023, dated
04.06.2024.
3. There is no dispute in the relationship between the parties. The
civil revision petitioner married the sole respondent on 24.10.2007. From
the wedlock, two children were born on 14.07.2008 and 03.02.2015
respectively. Subsequently, the parties separated. Alleging that the wife
had indulged in the act of cruelty and had voluntary sexual intercourse with
respondent Nos.2 to 4 in the Original Petition during the subsistence of the
marriage, the respondent filed the above Original Petition. A counter-
affidavit was presented by the petitioner herein denying all the allegations.
Thereafter, the parties went for trial.
4. During the pendency of the proceedings, the wife presented an
application in I.A.No.6 of 2024 seeking for interim maintenance. A
counter-affidavit was also presented by the respondent herein in the said
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application. When the matter was taken up for enquiry, a memo seems to
have been filed by the respondent stating that as he alleged that the wife is
living in adultery, the Interlocutory Application must be disposed of along
with the main Original Petition. For this proposition, the respondent placed
reliance upon the judgment of a Division Bench of this Court in Perumal
Vs. Saraswathi, C.M.A.No.3126 of 2019, dated 03.02.2021. The memo was
opposed by the civil revision petitioner stating that the disqualification
under Section 125 of the Criminal Procedure Code, 1973 and Section 25 of
the Hindu Marriage Act, 1955 will not apply to interim maintenance under
Section 24 of the Act.
5. After hearing both the sides, the learned Trial Judge took a view
that the interim maintenance application and the main Original petition
would be taken up together and ordered the memo. Aggrieved by the same,
the wife is on the revision.
6. Before I go into the merits of the case, an analysis of the two
legislations namely, the Hindu Marriage Act, 1955 and the Code of
Criminal Procedure, 1973 is required. There are provisions under the Hindu
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Marriage Act, 1955 which speak about grant of maintenance pendente lite
and grant of permanent alimony. While dealing with an application under
Section 24 of the Hindu Marriage Act, 1955, a Court has to see whether the
spouse, who is seeking for maintenance, is having independent income
sufficient to maintain herself or himself and to contest the proceedings. In
case, the Court comes to a conclusion that the petitioner/spouse does not
have independent source of income sufficient to maintain himself or herself
nor is possessed of sufficient funds to continue litigation, then, the Court
necessarily would have to order interim maintenance. The amount of
maintenance is, of course, at the discretion of the Court and it would depend
upon the status and station of the respective parties. I need not labour
myself on this proposition because the same has been settled by the
Supreme Court in Rajnesh Vs. Neha and Anr., (2021) 2 SCC 324.
7. In stars distinction to the distressing circumstances which alone
matters for Section 24 of the Act, if I were to look at Section 25 which
speaks about permanent alimony and maintenance, a Court has to take into
consideration "conduct of the parties" as well as other circumstances of the
case. In fact, the specific words that the wife is living in adultery being a
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bar for grant of maintenance, which is found under Section 125(4) of the
Code of Criminal Procedure, are absent in the Hindu Marriage Act, 1955.
The Court can, of course, if at the time of final disposal of the Original
Petition, finds that the wife is living in adultery, it might be a ground but it
is not necessary in all cases and depending on the circumstances of each
case, it deny permanent alimony to the wife. For the mere allegation made
by the husband that the wife is living in adultery or had voluntary
intercourse with the persons other than himself during the subsistence of
marriage, is not a ground to deny maintenance under Section 24 of the Act.
8. Mr.C.Vigneshwaran would rely upon C.M.A.No.3126 of 2019. A
careful perusal of the judgment would show that the attention of the Bench
had not been drawn to Rajnesh's case (cited supra) or to the fact that there
is a difference between Section 125(4) of the Code of Criminal Procedure,
Section 25 of the Hindu Marriage Act, 1955 and Section 24 of the said
legislation.
9. The Parliament, which enacted the Code of Criminal Procedure in
the year 1973, had also amended the Hindu Marriage Act, 1955
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subsequently, by bringing in the words "the conduct of the parties and other
circumstances of the case" in the year 1976. Though the parliament was
aware that it had made the amendment to the Code of Criminal Procedure
and had inserted the disability of a spouse living in adultery in the year
1973, the said words were not brought into Section 24 of the Hindu
Marriage Act. This shows that the allegation made by the husband, as
against the wife, should not be a ground for denial of maintenance of the
wife. When the Parliament had not brought in these aspects as
disqualifications for maintenance under Section 24, I am afraid a Court
cannot by interpretation, judicially, amend the statute.
10. As pointed out above, the only consideration that the Court would
have to see is the sufficiency of income and the inability of the petitioning
spouse to pay the litigation expenses. The purpose of maintenance is to
ensure that a wealthy petitioner does not take advantage of the financial
inability of the respondent and thereby, force the latter to concede to a
decree. It is the duty of the Court to ensure that the parties are at even
placed at the time of disposal of the petition. I am able to visualise a
situation where the wife, who is living in poverty due to financial distress,
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might readily agree to the terms which the husband would dictate. If the
Court were to fall into the trap laid out by the husband by making
allegations of adultery and denying the wife's interim maintenance, then the
playing field would certainly not be levelled and it would be skewed in
favour of the husband. These observations are being made in order to point
out to the difference under Section 24 on one hand and Section 25 of the
Hindu Marriage Act, 1995 and Section 125 of the Code of Criminal
Procedure on the other. I can also usefully take note of the judgment of the
Supreme Court in Amarjit Kaur Vs. Harbhajan Singh, (2003) 10 SCC 228.
11. When a judgment of the Supreme Court is pitted against one of a
Division Bench judgment of this Court which has not discussed the scope
and nature of the provision, I am duty bound to follow the view taken by the
statute and the verdict of the Supreme Court. Since the Division Bench did
not refer to the provisions nor to the applicable judgment of the Supreme
Court, I am not in a position to apply the said judgment to the facts of this
case as a precedent.
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12. If, as argued by Mr.C.Vigneshwaran, the Interlocutory
Application for maintenance in the main divorce petition were to be tried
together, then, the Court would never have the opportunity to apply the
aforesaid procedure developed by the Court in order to enforce its orders on
maintenance.
13. The learned Judge shall first dispose of the application in I.A.No.6
of 2024. After the order copy is served on the parties and after sufficient
time is granted to the parties to agitate the order in revision, if they so
desire, the learned Judge shall proceed to take up the main Original Petition
for disposal. I am giving this direction because, in case the Court comes to
a conclusion that the husband is liable to pay maintenance to the wife, he
should be given sufficient time to clear the arrears so as to enable him to
proceed further with the petition. This is because, in case, the husband
defaults in payment of maintenance, the wife is entitled to or the Court may
suo moto strike of the defence of the husband or dismiss the divorce petition
for non-payment of maintenance.
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14. In the light of the above discussion, this Civil Revision Petition
stands allowed. The order passed by the learned III Additional Principal
Family Court at Chennai in memo in I.A.No.6 of 2024 in O.P.No.1320 of
2023, dated 04.06.2024 is set aside. No costs. Consequently, connected
miscellaneous petition is closed.
20.09.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The III Additional Principal Family Court,
Chennai.
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V.LAKSHMINARAYANAN, J.
grs
20.09.2024
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