Madras High Court
Dr.Muthian Sivathanu vs Nalini Muthian on 10 December, 2015
RESERVED ON : 30.11.2015
DELIVERED ON : 10.12.2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2015
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
C.R.P.(NPD)Nos.4728 & 4729 of 2014 &
M.P.Nos.1 & 1 of 2014
Dr.Muthian Sivathanu ... Petitioner
v.
Nalini Muthian ... Respondent
Civil Revision Petition No.4728/2015 filed under Article 227 of the Constitution of India, to set aside the order dated 8.11.2014 passed in I.A.No.606 of 2014 in F.C.O.P.No.3835 of 2011 by the II Additional Judge, Family Court at Chennai.
Civil Revision Petition No.4729/2015 filed under Article 227 of the Constitution of India, to set aside the order dated 8.11.2014 passed in F.C.O.P.No.3835 of 2011 by the II Additional Judge, Family Court at Chennai consequent on the order passed in I.A.No.606/2014.
For Petitioner : Mr.M.Sivathanu
For Respondent : Ms.C.Shyamala
COMMON ORDER
Civil Revision Petition No.4728 of 2015 arises against the fair and final order passed in I.A.No.606 of 2014 in F.C.O.P.No.3835 of 2011 on the file of II Additional Judge, Family Court, Chennai.
2. Civil Revision Petition No.4729 of 2015 arises against the fair and decreetal order passed in F.C.O.P.No.3835 of 2011 on the file of II Additional Judge, Family Court, Chennai.
3. Heard Mr.M.Sivathanu, learned counsel appearing for the petitioner and Ms.C.Shyamala, learned counsel appearing for the respondent.
4. The petitioner is the husband of the respondent. He married the respondent in May 2006 and the respondent-wife delivered a girl child on 3.6.2007. In respect of the matrimonial dispute arose between the petitioner and the respondent, he filed F.C.O.P.No.3835 of 2011 for divorce on the ground of cruelty. The respondent filed her counter and was contesting the Original Petition.
5. In the said Original Petition, the respondent-wife filed an application in I.A.No.470 of 2012 seeking interim maintenance for her and her minor daughter viz., Subhalakshmi, at the rate of Rs.50,000/- each per month and also to pay a sum of Rs.50,000/- towards litigation expenses. The said application was contested by the petitioner-husband and the II Additional Judge, Family Court, Chennai, partly allowed the application by directing the petitioner to pay a sum of Rs.40,000/- each per month to the respondent and the minor child totalling Rs.80,000/- and to pay a sum of Rs.50,000/- towards litigation expenses.
6. Challenging the said order, the petitioner filed a Civil Revision Petition in C.R.P.(PD)No.4041 of 2012 and this court by order dated 7.12.2012, partly allowed the Civil Revision Petition by reducing the monthly maintenance from Rs.40,000/- to Rs.20,000/- for both, the respondent and the minor child, from the date of the application. As far as the litigation expenses is concerned, the sum of Rs.50,000/- granted by the Family Court was reduced to Rs.25,000/-. Further, this court directed the Family Court to dispose of the Original Petition as expeditiously as possible.
7. Challenging the order passed in the Civil Revision Petition in C.R.P.(PD)No.4041 of 2012, the respondent-wife filed an appeal before the Hon'ble Supreme Court in Civil Appeal No.8230 of 2013 and the Hon'ble Supreme Court, by order dated 21.08.2013, set aside the order passed by this court in C.R.P.(PD)No.4041 of 2012 and restored the order passed by the Family Court. While allowing the Appeal, the Hon'ble Supreme Court made it clear that the respondent-wife shall be entitled to maintenance at the rate which was determined by the Family Court and in case, if any amount is not paid to her, she is free to execute it by approaching the Family Court. Further, the petitioner-husband was given liberty to approach the Family Court and request for expeditious disposal of the divorce case.
8. Pursuant to the orders of the Hon'ble Supreme Court, the respondent-wife also filed an Execution Petition in E.P.No.53 of 2013 for recovery of arrears of maintenance. In the said Execution Petition also, the petitioner filed three applications and all the three applications were dismissed by the Family Court on 1.9.2014.
9. Since the petitioner-husband failed to comply with the orders of the Hon'ble Supreme Court, she filed an application in I.A.No.606 of 2014 in F.C.O.P.No.3835 of 2011 to stay all further proceedings of the Original Petition in F.C.O.P.No.3835 of 2011 filed by the petitioner, since he had failed to pay the interim maintenance and arrears of interim maintenance. The application filed by the respondent-wife was contested by the petitioner.
10. The Family Court took into consideration the order dated 21.08.2013 passed by the Hon'ble Supreme Court and found that even after a lapse of several months, the petitioner failed to comply with the order of the Hon'ble Supreme Court by paying the monthly maintenance to the respondent and her minor daughter.
11. The Family Court, taking into consideration the case of both the parties, while ordering the application in I.A.No.606 of 2014, observed that the petitioner-husband has not paid the arrears of interim maintenance and dragged on the matter by filing one petition after the other and filing appeals before the higher forums and thereby putting the respondent at an disadvantageous position, which results in the delay in concluding the proceedings. The Family Court, while allowing the application in I.A.No.606 of 2014, dismissed the Original Petition in F.C.O.P.No.3835 of 2011, since the petitioner-husband had failed to pay the arrears of interim maintenance till date as per the orders of the Hon'ble Supreme Court dated 21.08.2013. Accordingly, the Original Petition in F.C.O.P.No.3835 of 2011 was also dismissed.
12. Against these two orders, the petitioner has filed the above Civil Revision Petitions.
13. In spite of the fact that the Hon'ble Supreme court had set aside the order passed by this court in C.R.P.(PD) No.4041 of 2012 and allowed the Civil Appeal No.8230 of 2013 and restored the order passed by the Family Court in I.A.No.470 of 2012 and also made it clear that the respondent-wife shall be entitled to maintenance at the rate which was determined by the Family Court and in case, if any amount is not paid to her, she is free to execute it by approaching the Family Court, the petitioner-husband had failed to pay the maintenance amount till this date to the respondent-wife.
14. The learned counsel, who is the father of the petitioner, had argued against the order passed by the Hon'ble Supreme Court stating that the said order was obtained by playing fraud on the court and that the order is erroneous.
15. It is also brought to the notice of this court that after the disposal of the Civil Appeal by the Hon'ble Supreme Court, the petitioner also filed a Review Petition in R.P.(C) No.2496 of 2013, which was also dismissed by the Hon'ble Apex Court on 12.12.2013.
16. In spite of the caution made by this court to the learned counsel for the petitioner as to the submissions made against the order passed by the Hon'ble Apex Court, the learned counsel went on to make a submission questioning the correctness of the order passed by the Hon'ble Apex Court.
17. I am of the considered view that when the Hon'ble Supreme Court had found that the respondent-wife is entitled to maintenance at the rate which was determined by the Family Court and in case, any amount is not paid to the appellant-wife, she is free to execute it by approaching the Family Court, in such circumstances, the petitioner cannot be heard to make submission with regard to the correctness of the order passed by the Hon'ble Apex Court.
18. Pursuant to the order passed by the Hon'ble Supreme Court, since the petitioner-husband failed to pay the maintenance amount to the respondent and her minor daughter, left with no other alternative, she filed Execution Petition in which also the petitioner filed various petitions which were also dismissed by the Family Court. The respondent-wife filed an application in I.A.No.606 of 2014 in F.C.O.P.No.3835 of 2011 to stay all further proceedings of the petition in F.C.O.P.No.3835 of 2011, since the petitioner failed to pay the interim maintenance and arrears of interim maintenance amount as directed by the Hon'ble Supreme Court. The application filed by the respondent-wife was contested by the petitioner.
19. Admittedly, the petitioner has not complied with the orders of the Hon'ble Apex Court by paying the monthly maintenance to the respondent and her minor daughter. Without paying the maintenance as per the orders of the Hon'ble Supreme Court, the petitioner is now arguing against the order passed by the Hon'ble Apex Court.
20. The learned counsel appearing for the petitioner submitted that the respondent had obtained the order from the Hon'ble Supreme Court by playing fraud on the court. Further, the learned counsel further submitted that along with the Review Petition, he has also filed petitions under section 340 Cr.P.C. read with 193, 200 and 209 of IPC and that the Hon'ble Supreme Court had not considered those petitions filed by him, at the time of dismissal of the Review Petition. But, on a perusal of the cause list of the Apex Court dated 12.12.2013, it is clear that all his petitions were listed before the Hon'ble Supreme Court for hearing and by order dated 12.12.2013, the Hon'ble Apex Court had dismissed the Review Petition in R.P.(C) No.2396 of 2013.
21. In the case of the petitioner, aggrieved over the order passed by the Hon'ble Supreme Court, the remedy available to the petitioner is to approach the Hon'ble Supreme Court and not this court. With regard to the correctness of the order passed by the Hon'ble Supreme Court and the orders obtained by fraud, the learned counsel relied upon the following judgments:-
(i) AIR 1994 Supreme Court 853 [S.P.Chengalvaraya Naidu (dead) by L.Rs. v. V.Jagannath (dead) by L.Rs. and others]
(ii) 2010 (8) Supreme Court Cases 383 [ Meghmala and others v. G.Narasimha Reddy and others]
(iii) AIR 2007 Supreme Court 1546 [ A.V.Papayya Sastry and Ors. v. Government of A.P. and others]
(iii) 2003(8) Supreme Court Cases 319 [ Ram Chandra Singh v. Savitri Devi and others]
(iv) 2006(7) SCC 416 [Hamza Hajji v. State of Kerala & Anr.
22. In most of these judgments relied upon by the learned counsel for the petitioner it speaks about the fraud played on the court in obtaining a favourable order. In the case on hand, raising this issue, the petitioner has already filed Review Petition before the Hon'ble Supreme Court, which was also dismissed by the Hon'ble Apex Court on 12.12.2013. Even after the dismissal of the Review Petition, the petitioner without complying with the orders of the Hon'ble Apex Court and in spite of the liberty given to the respondent to initiate execution proceedings, the petitioner failed to pay the monthly maintenance. Now, the petitioner has come forward to question the correctness of the order passed by the Hon'ble Supreme Court. I am of the considered view that the submissions made by the learned counsel for the petitioner cannot be accepted.
23. The learned counsel appearing for the respondent-wife submitted that the contention raised by the learned counsel for the petitioner cannot be accepted for the reason that the issues now raised in these Civil Revision Petitions were already raised before the Hon'ble Supreme Court and the Hon'ble Supreme Court had restored the order of the Family Court granting interim maintenance of Rs.40,000/- each to the respondent and her minor daughter. Further, the learned counsel submitted that in spite of the order passed by the Hon'ble Supreme Court, the petitioner had not obeyed the orders and evaded the payment of the monthly maintenance raising one objection or the order. In support of her contention, the learned counsel for the respondent, relied upon the following judgments:-
(i) 2002(3) MLJ 319 [Hema v. Parthasarathy] wherein this court held that in the case of husband not making payment of maintenance and litigation expenses, court invoking inherent power, can dismiss the main Original Petition and the wife can file an application to dismiss the main Original Petition for non payment.
(ii) An unreported judgment of this court made in C.R.P.(NPD) No.2717 of 2014 [Anitha v. Mahaveer Sancheti], dated 5.8.2014 wherein, this court held relied upon a judgment of the Hon'ble Apex Court made in Civil Appeal No. 1473 of 1999 [Hirachand Srinivas Managaonkar v. Sunanda] wherein, the Apex Court held that in a case of refusal of pay alimony by the husband is a wrong within the meaning of section 23(1)(a) of the Hindu Marriage Act so as to dis-entitle the husband to the relief of divorce is depending on the facts and circumstances of the case and no general principle or straight-jacket formula can be laid down for the purpose. Further, the Apex Court held that such conduct in committing a default cannot in the facts and circumstances of the case be brushed aside as not a matter of sufficient importance to dis-entitle him to get a degree of divorce under section 13(1)(a).
24. The judgments relied upon by the learned counsel appearing for the respondent squarely applies to the facts and circumstances of the present case.
25. As already stated, since the petitioner had defaulted in making the payment of the maintenance amount and litigation expenses as ordered by the Hon'ble Supreme Court, the Family Court is perfectly correct in allowing the application in I.A.No.606 of 2014.
26. As per section 23(1)(a) of the Hindu Marriage Act, when the petitioner-husband has failed to pay the maintenance to the wife, the Family Court can stay the trial of the proceedings. In the case on hand, the respondent-wife has filed I.A.No.606 of 2014 only to stay all further proceedings of the Original Petition in F.C.O.P.No.3835 of 2011 and in such case, the Family Court could have stayed all further proceedings in F.C.O.P.No.3835 of 2011 instead of dismissing the Original Petition in toto. When the prayer itself is only to stay all further proceedings, the Family Court should not have dismissed the Original Petition.
27. Though I totally agree with the findings of the Family Court made in I.A.No. 606 of 2014, I am of the considered view that the Family Court erred in dismissing the Original Petition. So far as the payment of maintenance is concerned, the same was already decided by the Hon'ble Supreme Court and the said order has reached finality. In such a case, the petitioner has no legs to contend that the order passed by the Hon'ble Apex Court is not correct. The order passed by the Hon'ble Supreme Court is binding on the parties and the petitioner is bound to obey the orders of the Hon'ble Apex Court.
28. In these circumstances, the fair and decreetal order passed in I.A.No.606 of 2014 in F.C.O.P.No.3835 of 2011 is modified by staying all further proceedings of the Original Petition in F.C.O.P.No.3835 of 2011 till the petitioner pays the entire maintenance amount as ordered by the Hon'ble Supreme Court without any default to the respondent. In the event of the petitioner paying the entire maintenance amount and litigation expenses as ordered by the Hon'ble Supreme Court, the Family Court shall vacate the interim stay and allow the petitioner to prosecute the Original Petition on merits. However, I make it clear that the order of stay granted in I.A.No.606 of 2004 in F.C.O.P.No.3835 of 2011 shall not stand in the way of the respondent-wife executing the order passed in I.A.No.470 of 2012 as per the orders of the Hon'ble Supreme Court. The Civil Revision Petition in C.R.P.(NPD) No.4728 of 2014 is partly allowed with the above observations.
29. In view of the order passed in C.R.P.(NPD) No.4728 of 2014, the fair and final order passed in F.C.O.P.No.3835 of 2011 are set aside and the Civil Revision Petition in C.R.P.(NPD) No.4729 of 2014 stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
10.12.2015
Index : No
Rj
To
The II Additional Judge,
Family Court
Chennai.
M. DURAISWAMY,J.,
Rj
Order in
C.R.P.(NPD)Nos.4728 & 4729 of 2014 &
M.P.Nos.1 & 1 of 2014
10.12.2015