Madras High Court
Dhanalakshmi vs Kavitha on 18 January, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.01.2018
(Reserved on 11.12.2017)
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(NPD)(MD)No.1307 of 2008
and
MP(MD)No.1 of 2012
Dhanalakshmi ... Petitioner
vs.
Kavitha ... Respondent
Petition filed under Section 115 of the Civil Procedure Code, against
the order and decreetal order dated 11.02.2008 made in E.A.No.423/2007 in
E.A.No.33/2004 in E.A.No.144/2003 in E.P.No.80/1995 in O.S.No.315/1986 on the
file of the Principal District Munsif, Srivilliputhur.
!For Petitioner : Mr.S.Kadarkarai
^For Respondent : Mr.E.N.Venkatesan
:ORDER
This Civil Revision Petition has been filed against the order and decreetal order dated 11.02.2008 made in E.A.No.423/2007 in E.A.No.33/2004 in E.A.No.144/2003 in E.P.No.80/1995 in O.S.No.315/1986 on the file of the Principal District Munsif, Srivilliputhur.
2.The revision petitioner would aver among other things that she filed O.S.No.315/1986 on the file of the Principal District Munsif, Srivilliputhur, against the defendant/her husband by name, Rajaram praying for past maintenance of Rs.1,500/- and future maintenance of Rs.300/- per month and charge over the property in case of failing to pay the said amount. In the said suit, the petitioner filed I.A.No.823/1986 praying for an injunction restraining the defendant/Rajaram from alienating or encumbering the suit property. The suit was decreed as prayed for and the charge was also created in the suit schedule property. The petitioner's husband Rajaram filed an appeal in A.S.No.21 of 1980 before the Sub Court, Srivilliputhur, against the judgment and decree passed in the suit and that appeal was also dismissed for default and ultimately the decree ended in favour of the revision petitioner.
3.Learned counsel for the petitioner would submit that in August 1994, the revision petitioner filed E.P.No.80 of 1995 to execute the decree by bringing the suit property for sale, since the petitioner's husband had not paid the decree amount. One Mr.Subburam and Jeyalaxmi who are brother and sister of the petitioner's husband filed E.A.No.99 of 1996 in O.S.No.315 of 1986 under Order 21 Rule 58 CPC claiming themselves to be the partners in the partnership firm by name, M/s.Sri Gomal Industries and sought to raise attachment of the schedule property and the said E.A was dismissed. As there was no purchaser, the revision petitioner herself purchased the property in question in auction sale and the said sale was confirmed by the executing court. On 29.01.2004, in E.A.No.144 of 2003, the executing court delivered possession of the schedule mentioned property to the petitioner and delivery was also recorded.
4.Learned counsel for the petitioner further submitted that the petitioner's husband along with sister and brother said to have started the above partnership firm which was not registered under the Companies Act and mortgaged the scheduled mentioned property in question to the Indian Bank, suppressing the suit filed by his wife, the petitioner herein and interim order of injunction in I.A.No.823 of 1986 in O.S.No.315 of 1986 with mala fide intention to defeat the right of the petitioner. In 1995, the Indian Bank filed O.S.No.444 of 1995 on the file of the Sub Court, Srivilliputhur, for recovery of a sum of Rs.11,49,363.75/- against the said partnership firm and the same was transferred to the Debt Recovery Tribunal, Chennai and DRT decreed the suit in favour of the Indian Bank and to execute the decree, the recovery officer brought the property in question for auction. The respondent herein purchased the property in question for a sum of Rs.3,70,000/-. The respondent/purchaser owned a property opposite to the suit schedule property. On 16.01.2003, the Tribunal confirmed the sale and alleged that possession of the suit schedule property delivered to the respondent, but according to the petitioner, the said delivery is only a paper delivery and possession is deemed possession.
5.It is further submitted that since the husband of the revision petitioner failed to pay maintenance, the suit property was attached and interim order was passed not to alienate or encumber the property and it was brought for sale and the petitioner herself purchased the property as there was no purchaser and delivery of possession was also ordered by this Court. At this juncture, the respondent has filed E.A.No.33 of 2003 praying to dismiss E.A.No.144 of 2003 filed by the petitioner by obstructing to take delivery of possession of the property stating that the property in question was already taken possession by her through DRT, Chennai. The petitioner contested the said application by filing counter, stating that the alleged order made by DRT is not valid in the eye of law and claim application in E.A.No.99 of 1996 fled by M/s.Sri Gomal Industries was dismissed and therefore, the respondent is not entitled to raise any objection whatsoever by filing E.A.No.33 of 2003. Thereafter, the petitioner filed E.A.No.423 of 2007 on 23.11.2007 to decide the maintainability of the claim application in E.A.No.33 of 2004 and it was dismissed on 11.02.2008, against which, the present revision petition has been filed. In support of his contentions, learned counsel for the petitioner relied on the following judgments:-
i)Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another reported in (1997) 3 SCC 694.
ii)Shreenath and another vs. Rajesh and others reported in AIR 1998 SC 1827.
iii)Sameer Singh and another vs. Abdul Rab and others reported in 2014 (6) CTC 98.
6.Per contra, the respondent would submit that she is the court auction purchaser in DRT, Chennai. One Mr.Rajaram is the husband of the revision petitioner. He is one of the partners of M/s.Sri Global Industries. The said firm had availed loan from the Indian Bank, Trichy. The said Rajaram mortgaged the property in question belonged to him by way of equitable mortgage for the loan availed by the said firm in Indian Bank, Trichy Branch. Since there was default of the loan amount, the mortgagee bank has filed a mortgage suit for recovery of loan amount of Rs.11,49,363.75/- with cost and subsequent interest in O.S.No.444 of 1995 on the file of Sub Court, Srivilliputhur. Subsequently, the case was transferred to DRT No.2, Chennai and a decree was passed as against the said firm. The bank has brought the property in question for court auction sale on 10.10.2002 and the respondent has purchased the property in question in court auction for a sum of Rs.3,70,000/- on 02.12.2002 and the said sale was confirmed on 16.01.2003 and possession certificate was issued by the DRT on 12.03.2003. The sale certificate was duly registered before the concerned Sub Registrar on 04.11.2003. Thereafter, the respondent has got approved building plan from Samynthapuram on 24.02.2004 and patta was also mutated in the name of the respondent in her own name on 21.04.2004. The respondent would contend that she has also paid house tax for the property in question and it was marked as P.14 in claim application E.A.No.33/2004 and after the chief examination was over on 11.08.2005, the case was posted for cross examination by the revision petitioner and at this juncture, the revision petitioner has filed maintainability of the abovesaid claim petition in E.A.No.423 of 2007 on 23.11.2007 and it was dismissed on 11.02.2008 and the learned Judge has rightly dismissed the application and therefore, the interference of this Court is not necessary.
7.Heard the learned counsel for the petitioner as well as the respondent and perused the materials available on record.
8.The marriage between the petitioner and one Rajaram was solemnized on 17.06.1986 and as her husband deserted the petitioner, she filed O.S.No.315 of 1986 for maintenance and also prayed for an interim injunction restraining the respondent not to alienate or encumber the suit property. Initially, interim injunction was granted and thereafter, the suit was decreed on 02.01.1990. Aggrieved over the judgment and decree passed in the suit, the petitioner's husband filed appeal in A.S.No.21 of 1990 which was dismissed for default. Since the petitioner's husband failed to pay maintenance amount as per the decree, the petitioner filed E.P.No.80 of 1995 before the executing court to bring the suit property for sale and E.P was allowed and property was brought for court auction sale. Since there was no bidder, the petitioner purchased the said property on 25.10.2002 and delivery of possession of the suit property was ordered on 08.12.2003 and the property was delivered on 29.01.2004 on the application filed in E.A.No.144 of 2003 for delivery.
9.Perusal of the records shows that the respondent filed E.A.No.33 of 2004 praying for dismissal of the application filed by the petitioner in E.A.No.144 of 2003 by obstructing to take delivery of possession of the property claiming that possession has already been taken by her through DRT, Chennai. Perusal of records further shows that M/s.Sri Gomal Industries filed an application in E.A.No.99 of 1996 claiming that the suit property belongs to the firm which was dismissed stating that the property exclusively belonged to the petitioner's husband. Perusal of the records also shows that a specific plea was taken by the petitioner's husband that the suit property belonged to the partnership firm and the petitioner could not claim any right in the suit property. The issue was framed in that regard and as per Ex.A3, the learned Judge has given a finding that the property exclusively belonged to the petitioner's husband and not to M/s.Sri Gomal Industries and E.A.No.99 of 1996 filed by the brother and sister of the petitioner's husband Rajaram claiming to be the partners of the said firm stating that the property belongs to M/s.Sri Gomal Industries was dismissed by the learned Judge stating that the firm was not a registered firm.
10.As rightly contented by the learned counsel for the petitioner, while the mortgagee suit filed by the bank for recovery of the loan amount of Rs.11,49,363.75 with cost and subsequent interest, the partners of the said partnership firm and the petitioner's husband were well aware of the fate of the suit in O.S.No.315/86 filed by the revision petitioner and the charge made over in the said suit. The petitioner has purchased the suit property in court auction on 25.10.2002 which according to the respondent was delivered on 29.01.2004. Even assuming that the respondent is admitting delivery of possession, the respondent is only in deemed possession, but the petitioner has taken possession of the suit property through court of law and delivery has been recorded and therefore, the petitioner has got a valid title over the suit property.
11. The petitioner's husband who is one of the partners in M/s.Sri Global Industries should have brought to the knowledge of DRT before which the suit filed by the bank was pending, that already charge was made over in the suit property. The petitioner's husband as well as his sister who are said to be partners of M/s.Sri Global Industries had taken steps to thwart the order passed in favour of the petitioner and colluding each other, they suppressed all the material facts in order to defeat the right of the petitioner, especially when there is a specific order of injunction not to alienate or encumber the suit property. The argument of the respondent that the petition has been filed belatedly cannot stand in the eye of law. It is a clear abuse of process of court by the petitioner's husband, his sister and respondent to defeat the right of the petitioner and got order in their favour.
12.In many matters relating to matrimonial disputes, time swallows the relief sought by the party concerned. Maintenance of wife and children is one of the primary responsibility of the husband and in the present case, though maintenance was ordered, the petitioner's husband has abused the process of the court and prolonged the litigation from 1986 onwards without even paying a single pie to the wife towards maintenance and in spite of the order passed by the Court, the husband of the petitioner and his family members had by all methods colluded with each other and had used the courts to defeat the rights of the petitioner.
13.The Law Ministry as well as Courts have shown serious concern over the pending litigations of maintenance filed by womenfolk and are taking steps to dispose of maintenance cases to see to it that womenfolk get remedy at the earliest and this is one of the very classic case, where the petitioner is not even able to get her maintenance from 1986 onwards till date and yet the court proceedings have not been completed.
14.At this juncture, it is relevant to consider the order passed by this Court in Civil Revision Petition(PD) No.3406 of 2013 dated 25.04.2017(A.Savitha Ujwala and Baby Niharaikaa Venkatagiri vs. M.R.Venkatagiri), wherein, this Court this Court has extensively dealt with the consequences in the delayed disposal of maintenance petitions. The following paragraphs of the said order worth reproduction:-
''7. An husband's obligation to maintain his wife arises on his marriage with a woman. Such obligation towards his children arises on their birth. These obligations are imposed on him ''by operation of law''. It is also a ''moral obligation'' imposed upon him. It is 'immoral' and 'illegal' to deny them maintenance. In my view, it is a ''sacred duty of an husband or father'', as the case may be, towards his wife and children. This is the least the father of a girl expects from his son-in-law. Otherwise why should he marry a woman and leave her and her children in lurch in the street. If he is not in a petition to maintain her and the children he should have remarried a bachelor.
8. Besides the love and affection of their father, the children can also seek financial support from their putative father for their genuine and reasonable needs. It is ''too cruel on his part to deny them maintenance''. There may be many disputes or differences between the parents but that cannot be a reason to refuse them maintenance and make them to suffer. ''In matrimonial disputes the innocent children are the worst sufferers''. The warring couples fail to understand their sufferings. The relief of divorce has been granted by Court to a couples, though they become ex-husband and ex-wife, they continue to be the parents of their children.
9. In the matrimonial proceedings instituted under the said personal laws, the wife and children can seek maintenance against the husband/father, as the case may be. It is to provide them financial support.
It is for their survival, as long as the matrimonial proceedings are pending. Thus, they came to be called 'pendent lite maintenance'. It is also a 'temporary alimony' to the wife. They are in the nature of granting 'interim relief, 'interim measure', 'interim protection'.
10.The component of such maintenance includes a 'reasonable and a fair' amount for the woman to maintain herself 'according to the mode of life to which she is accustomed to', 'according to the status to which she is entitled to', 'according to the mode or life style to which her husband is accustomed to'. But, in any case, it cannot be for a luxurious mode of living or for 'extravagansa' and not beyond the means of the husband. In the case of children, this component also includes their educational expenses. They can be granted litigation expenses and monetary relief to cover their to and fro expenses to attend the Court and return their homes.
11.Hindu wives can seek such pendent lite maintenance in a pending matrimonial proceedings under Section 24 of the Hindu Marriages Act. The children can seek such maintenance from their father under Section 26 of the Act. Section 37 of the Indian Divorce Act, 1869, Section 39 of the Parsi Marriage and Divorce Act, 1936, Sections 36 and 38 of the Special Marriage Act, 1954 also deals with grant of pendent lite maintenance. Though the position in Islamic Law is different, Islamic Law do have provision for the women and children.
12.The object of Section 24 of the Hindu Marriages Act in providing maintenance to a party in matrimonial proceedings is obviously to provide financial assistance to the spouse to maintain herself or himself during the pendency of the proceedings and also to have sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct of the case for want of funds.
13. Section 24 of the Hindu Marriage Act seeks to provide financial support, wherewithal to the wife and Section 26 of the Act seeks to provide maintenance to the children to withstand the financial crisis arising out of the separation and also to face the matrimonial proceedings initiated by her husband.
14.The object behind Sections 24, 26 of the Hindu Marriage Act is survival of the wife and children as long as the matrimonial proceedings are pending. It also enures to the appeals, revisions and connected proceedings arising out of the matrimonial proceedings, either from the pendente lite maintenance proceedings or from the main matrimonial proceedings.
15. One disturbing feature which requires our attention is delay in the disposal of the maintenance petitions under Sections 24 and 26 of the Hindu Marriage Act.
16. In this case, the wife and children of the respondent have filed this maintenance petition in I.A.No.142 of 2013 under Sections 24, 26 of the Hindu Marriage Act as early as on 12.12.2012. Even today, it is pending.
17. This is a classic example of 'Law's delay', 'Court's delay', 'Judge's delay', 'System law', 'System failure'. All the stakeholders in the administration of gender justice shall owe responsibility for this sorry state of affair.
18. In a matrimonial proceedings, the women and children are fighting the husband, father, as the case may be not on equal footing. Some women gets financial support from their parents, brothers and sisters and also some work and earn. These are all exceptional cases. Many women and children are unable to face the onslaught of matrimonial proceedings because of their financial crisis. The husbands exploit their this pitiable plight. This is an area where 'women empowerment' is completely lacking.
19. In view of the mad rush in matrimonial Courts, it is very easy to go into these Courts, but very difficult to come out of these Courts within a short span of time. It is time consuming.
20.The women and children financially suffer very much. During the pendency of the matrimonial proceedings without proper financial support their survival becomes very difficult. They also suffer emotionally, mentally, physically, economically and also fiscally (financially).
21.The women and children are in a disadvantageous position, whereas it is not so in the case of husbands. Capitalising their this financial constraints, the husbands torture them by dragging on even these simple maintenance petitions for years together.
22.Adding fuel to their worries, the Courts also contribute their part by their long delay in disposing of these simple maintenance petitions. Actually by their inaction the Courts abets the perpetration of matrimonial violence and exploitation of women and children by the husbands. The present case before us itself is a classic example for this allegation.
23.Presently this woeful situation prevails in almost all the Family Courts and in other Courts dealing with matrimonial proceedings. The situation is not far better in the Magistrate's Courts dealing with maintenance petitions under Section 125 Cr.P.C.
24.If statistics of the pendency of these maintenance petitions are called for from these Courts and studied, we have to hung our heads, we will be ashamed to see the face of the affected women and children.
25.The women and children are standing in queues in these Courts to get relief even in these simple maintenance petitions for years together. It is quite a sickening sight. They did not get their due share of justice in the administration of gender justice by these Courts. Practically, the women and children are neglected by these Courts. Only lip service is being rendered to them.
26.Actually, these pendent lite maintenance petitions have to be disposed of in a summary manner. In these petitions, the work involved is very very minimal. In these petitions, a prima facie view as to the existence of relationship between the parties, financial capacity of the husband and the financial need of the wife and the children are required to be considered. Mostly income documents will be referred to. This can be done by reading the affidavits of the spouses.
27.On the first hearing or in the next hearing or at least in the further hearing these simple maintenance petitions can be easily disposed of, fixing a reasonable quantum of maintenance. It is not a difficult and herculean task. The learned Judges need not write lengthy orders running to several pages. It is just a miscellaneous petition for interim measure. A short and swift order will do.
28.Keeping this in mind, the Law Makers have fixed a prescribed period within which these maintenance petitions have to be disposed of (See Sections 24, 26 of Hindu Marriage Act, 1955, Section 36 of Special Marriage Act, 1954, Section 37 of Indian Divorce Act, 1869, Section 39 of Parsi Marriage and Divorce Act, 1936, also see 3rd proviso to Section 125 Cr.P.C and Central Act No.50 of 2001). Generally, these petitions should be dispose of within 60 days from the date of service of notice on the wife. Subsequently, in some Statutes, this period also has been reduced.
29.Yet, what is happening in the Family Courts, in the other matrimonial Courts and in the Magistrate's Courts is very alarming. The learned Judges try these simple maintenance petitions like a murder case in a Sessions Court or a most complicated suit before a Civil Court. Consequently, this also contributes to the Law's delay.
30.After a cruelling exercise, the wife and children gets maintenance orders, generally, a paultry sum, unrealistic and unmatching to the high inflation and spiralling prices of even essential commodities. Sometimes, the Courts dismiss them on a misunderstanding of law.
31.After so much legal battle, some merciful learned Judges passes maintenance orders. This will signal one part of end of a journey. Therefore, the women has to fight another battle to collect the maintenance amount so ordered by filing collection petition or the Execution Petition. The husband will be ready to spend any amount on matrimonial litigation but he will not have the heart to pay a paltry sum towards maintenance to his wife and children.
32.The situation is not happy in the revisions and appeals filed before the Sessions Courts and also before this Court. The women and children will have to wait for several years and till the orders are passed they suffer in silence. This is not the aim of law. This is not a correct justice delivery system.
33.Unlike in other litigations delay in the disposal of maintenance petitions affects the women and children very much. It affects a cross section of the society. It is human (woman) suffering. There are cases in which woman and children could not get financial support to survive themselves and face the matrimonial proceedings initiated by the husbands. Ultimately, they give up the legal battle, leave the Court with wounded feelings. And ex parte orders are freely passed. The erring husbands happily leave the Court. There is a victor and a vanquished. The result is failure of justice in gender justice. These are stark realities staring at our face.
34.There is no point in crying over the spilt milk. Past is past. Let us think of the future. Some remedial measures have to be attempted. Judges dealing with these simple matters must realise their responsibilities and their social obligation towards these type of litigants. They must keep in mind their pitiable plight. Unreasonable delay in the disposal of these simple maintenance petitions exhibits inefficiency on the part of the learned Judges.
35.Even in these petitions mediation, reconciliation can be attempted. Courts can effect compromise even on the quantum of maintenance in these maintenance petitions and pass orders accordingly [See Order 32-A, Section 89 CPC, Section 23(2) Hindu Marriage Act, Section 9 Family Courts Act, 1984 and Afcons Infrastructure Ltd and Another vs. Cherian Varkey Construction Co. (P) Ltd [(2010) 8 SCC 24].
36.Our aim should be to secure succor to the affected women and children quickly. In these matters delayed justice is denial of or burial of justice. Here hurried justice is the need of the hour. Our learned Judges are to be sensitized. They must made of aware of this darker side of gender justice. The same situation prevails in the Criminal Courts, in the Court of Judicial Magistrates, Metropolitan Magistrates, Mahila Courts, Family Courts, Sub-Courts and District Courts.
37.In these matters, the Tamil Nadu State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Authorities, High Court Legal Services Committee can play a significant role.
38.Very recently on 13.04.2017, in C.R.P.(PD)No.1366 of 2017, I have also issued several directions for the speedy disposal of these simple maintenance petitions.
39. In view of the foregoings, it is ordered as under:
(1) The learned I Additional Principle Judge, Family Court, Chennai is directed to dispose of I.A.No.142 of 2013 in HMOP No.4157 of 2012, within a period of 15 days from the date of receipt of a copy of this order.
(2)As soon as the said I.A. is disposed of, the trial court should submit its completion report to the Registrar(Judicial) of this Court.
(3)Consequently, the connected miscellaneous petition is closed. (4)In such circumstances, no order as to costs.''
15.In my considered opinion, it is a fraud played on the petitioner by his husband and his family members and they have cheated the respondent as well as the bank also, for which, the bank is entitled to proceed against the petitioner's husband and brother and sister for recovery of their dues. The respondent is entitled to claim her remedy in the manner known to law.
16.On the aspect of suppression, it is relevant to consider the decision of the Hon'ble Supreme Court in Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, wherein, at paragraphs 11 and 12, it has been held as follows:
"11. The court?s jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question.
12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.''
17.In the result, the impugned order made in E.A.No.423/2007 in E.A.No.33/2004 in E.A.No.144/2003 in E.P.No.80/1995 in O.S.No.315/1986 on the file of the Principal District Munsif, Srivilliputhur, is set aside. In view of the above judgment and circumstances of the case, E.A.No.33/2004 is not maintainable. The Execution Court is directed to dispose of E.A.No.144/2003 and E.P.No.80/1995 in O.S.No.315/1986 within a period of fifteen days from the date of receipt of a copy of this order, taking into account the pendency of EP which is about 22 years and ensure possession of the suit property is delivered to the revision petitioner immediately, and send compliance report to the Registrar(Judicial) of this Court. The respondent is directed to work out her remedy in the manner known to law.
With the above direction, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
To The Principal District Munsif, Srivilliputhur.
.