Madras High Court
N.R. Gopal vs K.G. Banumathi And Anr. on 7 February, 2000
Equivalent citations: AIR2000MAD300, (2000)IIMLJ107, AIR 2000 MADRAS 300, (2000) 2 MAD LJ 107, (2000) 3 ICC 440, (2000) 2 MAD LW 711, (2000) 2 MARRILJ 527
ORDER S.S. Subramani, J.
1. Both these Revisions are filed by the husband in H.M.O.P. No. 43 of 1999. on the file of Family Court at Madurai.
2. Petitioner herein filed H.M.O.P. No. 43 of 1999, seeking divorce of the first respondent herein on various grounds. Pending application, first respondent herein filed I.A. Nos. 74 and 75 of 1999. In IA No. 74 of 1999. first respondent herein wanted to restrain the husband, petitioner herein, from redeeming a property scheduled in that petition by discharging an 'othi', executed in favour of second respondent in that I .A.
3. In support of that I. A., first respondent has filed an affidavit stating that the petitioner herein is working as a driver in a Government undertaking and is getting a monthly income of not less than Rupees 5,000/-. She has further said that in 1997 they fixed a house on 'othi' which belonged to the second respondent in that application. The 'othi' amount was Rs. 34,000/-. Since the husband was not in possession of sufficient funds, the ornaments belonging to the wife were sold for raising funds and thus obtained 'othi' of the house, where they are residing together. In fact, the sum and substance of her contention is that the mortgage right belongs to the wife also. She has further averred in the affidavit that after getting the mortgage right, both the husband and wife began to live in that house. A few months later, the husband did not take care of the family and started living with another woman. Since the morgage right belongs to the first respondent herein (wife) also, to defeat the same, the husband is now trying to surrender her mortgage right also and get the mortgage amount by himself. Therefore, first respondent/wife moved I.A. 74 of 1999 with a prayer that the husband should not be allowed to redeem the 'othi' and get the amount from the mortgagor. In the other application, viz., LA. No. 75 of 1999, she claimed interim maintenance at the rate of Rs. 2,000/- per mensem, Rs. 10,000/- towards educational expenses and Rs. 5,000/ - towards litigation expenses.
4. Copies of these applications were served on the husband, and conciliation proceedings were also taken. But. later, the husband filed a memo stating that be is not pressing the divorce petition. A memo was filed on 13-5-1999. But the lower Court passed orders on the interlocutory applications by awarding interim maintenance at the rate of Rs. 2,000/- from the date of the petition and also passed an order of injunction restraining the petitioner herein from surrendering the property and receiving the amount from the mortgagor. Those Orders are challenged in these Revision Petitions.
5. Since the first respondent/wife has entered appearance through Counsel, with consent of parties, both the Revisions were heard for final disposal at the stage of admission itself.
6. The main argument of learned Counsel for the petitioner was that the lower Court cannot pass an interim order when tn the main petition, the husband has made an endorsement that he is not pressing the same. Once the main petition itself is dismissed as not pressed, the lower Court has no jurisdiction to pass any interim order. It was further submitted by learned Counsel that regarding redemption of mortgage, the same is governed by Section 60 of the Transfer of Property Act and Order 34, CPC also provides for the same. The wife cannot file an application to prevent the mortgagee from surrendering the property, nor can the mortgagor be prevented from redeeming the mortgage.
7. Learned Counsel for first respondent submitted that the lower Court has taken into consideration the interests of justice, and powers under Section 115, CPC may not be invoked to interfere with such orders.
8. Heard learned Counsel on both sides.
9. I will first consider C.R.P. No. 3690 of 1999, which is a Revision filed against the order passed in I.A. No. 75 of 1999 seeking interim maintenance.
10. The main argument of the Counsel for petitioner is that no order should have been passed when the husband is not prosecuting the divorce petition. Learned Counsel submitted that LA 75 of 1999 filed under Section 24 of the Hindu Marriage Act was disposed of along with the main pelition for divorce, wherein the lower Court has held that H.M.O.P. No. 43 of 1999 is dismissed as not pressed.
11. While discussing I.A. 75 of 1999, the lower Court has held that the wife is entitled to maintenance at the rate of Rs. 2000/- per mensem from the date of petition, and it also directed the General Manager of the Tamilnadu State Transport Corporation to attach a sum of Rs. 2,000/- per mensem from the salary of the petitioner herein and send the same to the Family Court periodically. In regard to educational expenses and litigation expenses, no amount was granted since the main petition itself was withdrawn, or dismissed as not pressed. It is clear from the above Order that the lower Court has granted maintenance permanently, to the wife and has invoked Section 25 of the Hindu Marriage Act. The question is, whether the lower Court is empowered to pass such an order.
12. Section 24 of the Hindu Marriage Act deals with granting interim alimony, i.e. during the pendency of the litigation, and Section 25 of the Act deals with granting of permanent alimony and maintenance.
13. Relevant portion of sub-Section (1) of Section 25 of the Hindu Marriage Act reads thus:--
"Any Court exercising jurisdiction under this Act may at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent."
(Emphasis applied)
14. In a recent decision of the Madhya Pradesh High Court (Surajmal v. Rukminibai), a similar question arose for consideration. In the written statement filed by wife, she claimed maintenance. Divorce was allowed. But the wife had not filed any application for getting permanent alimony. When permanent alimony was allowed, it was challenged before the High Court. While considering the same, learned Judge of the Madhya Pradesh High Court has held thus (at pp. 49 and 50 of AIR) :--
"........The Act has adopted a broader approach while dealing with matrimonial cases. Therefore, the words 'on application made to it' used in Sub-section (1) of Section 25 will have to be interpreted in a broader view. The word 'on, application made to it' should not be construed in a strict sense. It does not mean always that such spouse is required to present a separate application for making a prayer for permanent alimony. Afterall, provisions of Section 25 of the Act according to me have been introduced in the Act for the purpose of protecting the interest of such spouse against whom the Court has passed the decree. When such spouse happens to be a wife, the society and law would not afford to see such spouse seeking sanctuary on the streets at the stake of losing her soul and virtues. When the decree of divorce is passed, the law would be definitely interested in seeing that some arrangement has been made for the purpose of enabling such spouse-wife to have some money with her which would enable her to live safely and with dignity of womanhood. Such provisions would be made if she is left to maintain herself with a child begotten out of the wedlock which has been dissolved by decree of divorce dissolving such marriage. It would create difficult situation for such discarded wives and children increasing the possibility of vagaries and unchastity. Therefore, it will have to be seen whether a prayer has been made by such spouse any way in the written statement or by separate application. Keep--ing in view the spirit of the enactment of the Act, it would be safe if such a prayer is made in the written statement."
I think the same principle could be followed in this case also. The wife filed the petition, under Section 24 of the Act, and when the same was pending consideration, petitioner/husband got his petition for divorce dismissed as not pressed. So, the petition under Section 24 of the Act was taken as an application under Section 25 of the Act. Even though Section 25 of the Act contemplates an application, law does not insist on a written application. If the wife has already filed an application for interim maintenance, and she wants to treat that application as one under Section 25 of the Act, the Court will be perfectly justified in granting a relief. As held in the decision cited supra, insisting on a separate application under Section 25 of the Act amounts to insistence only on a technicality, and not in the interest of justice. In this case, the husband has played a fraud on Court. Immediately after withdrawing the application as not pressed, within a few days, he moved the Sub Court, Madurai again for divorce on the same grounds. It is clear from such an act of the petitioner/ husband that he did not want the wife to get an order for Interim maintenance, and he made an endorsement as not pressed, only to defeat the right of the wife from getting a relief under Section 24 of the Act. The Family Court has found that the wife has no funds of her own, and she is also not in position to maintain herself. The children born in that marriage are also to be looked after by the wife, who has been deserted now. The husband has come to this Court with the Revision Petition CRP 3690 of 1999 urging a technical ground that the wife has not filed an application under Section 25 of the Act. While exercising the powers under Section 115 of the Code of Civil Procedure, the Court is concerned only about the interest of justice. Even if any irregularity has been committed by the Family Court in passing an order granting permanent alimony, this Court is not inclined to interfere with the same, for, this Court is of the opinion that the lower Court has passed an order which interest of justice requires. Wife and children, who are depending on the petitioner herein, should be maintained by him. Therefore, I do not find any material irregularity in the order passed by the lower Court. Therefore, C.R.P. No. 3690 of 1999 is dismissed with costs.
15. The question that arises for consideration in C.R.P. No. 3689 of 1999 is, whether the lower Court was justified in passing an order of injunction restraining the petitioner from receiving the mortgage amount and surrendering the property.
16. It is true that under Section 60 of the Transfer of Property Act read with Order 34 (1), CPC, the right of redemption could be exercised by a person who has got interest in the mortgage property. In this case, the petitioner/husband claims to be the mortgagee, and second respondent in CRP No. 3689 of 1999 is the mortgagor. Section 60 of the T.P. Act read with Order 34 (1) CPC enables the mortgagor to redeem the property. But, we must also take into consideration the provisions of the Family Courts Act. Section 7 of the Family Courts Act says that suits or proceedings between parties to a marriage with respect to property of the parties or either of them is to be decided by the Family Court only. In this case, the wife has alleged that it is by sale of her jewels, the mortgage right itself was acquired. She claims a right over the property. The husband wants to surrender the property and get the entire mortgage amount. It is in the mortgaged property, the parties are residing. If the mortgage is redeemed, naturally, the wife and children, who are now deserted, will have no place to reside. It is in these circumstances, the lower Court passed an order of injunction as prayed for in I.A. No. 74 of 1999. Second defendant who is the mortgagor, is not aggrieved by the Order, and he has not filed any Revision.
17. The husband alone has filed the Revision challenging the Order of the Family Court. If the mortgagor does not want redemption, and is not aggrieved by the order of the lower Court, the petitioner/husband alone cannot insist that he will surrender the property and receive the mortgage amount.
18. If the second respondent wants redemption, he may file a suit before the proper Court making the petitioner and the respondents as parties to the litigation and deposit the amount in Court. The question as to who is entitled to the mortgage amount will be decided in that suit. Till then the petitioner herein is prohibited from withdrawing that amount. I think that will safeguard the rights of all parties.
19. With the above observations, C.R.P. No. 3689 of 1999 is dismissed. No costs.
C.R.P. No. 3690 of 1999 is dismissed with costs. Connected C.M.Ps. are also dismissed.