Kerala High Court
K.Sunil Babu vs Mariya V.Joy
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 10TH DAY OF JUNE 2013/20TH JYAISHTA 1935
OP (FC).No. 1675 of 2013 (R)
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PETITIONER(S):
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K.SUNIL BABU, AGED 34 YEARS
S/O.DR.K.C.BABU, MOOLAPAT HOUSE,
MANJAKKAD, SHORNUR, OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADV. SRI.RAJIT
RESPONDENT(S):
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MARIYA V.JOY, AGED 29 YEARS,
D/O.JOY V.P., CHAMMANAM HOUSE,
BOWLING GREEN
MISSION QUARTERS, THRISSUR-680001.
BY ADV. SHRI SANTHEEP ANKARATH
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10-06-
2013, ALONG WITH OP(FC) No.1699/2013, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP (FC).No. 1675 of 2013 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 :TRUE COPY OF THE APPLICATION IN IA 1798/2012 IN OP 880/2011
OF THE FAMILY COURT, THRISSUR FILED BY THE RESPONDENT UNDER
SEC.36 OF THE DIVORCE ACT.
EXHIBIT P2 : TRUE COPY OF THE COUNTER FILED BY THE PETITIONER TO EXT.P1.
EXHIBIT P 3:TRUE COPY OF THE JUDGMENT DT.9-12-12 IN OP(FC) 3094/2012
BEFORE THIS HON'BLE COURT.
EXHIBIT P4 :TRUE COPY OF THE ORDER DATED 18-2-2013 IN IA 1798/2012 IN OP
880/2011 OF THE FAMILY COURT.
EXHIBIT P5 :TRUE COPY OF THE APPLICATION IN IA 1151/2013 IN IA 1798/2011
OF THE FAMILY COURT.
ANTONY DOMINIC & P. D. RAJAN, JJ.
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O.P.(FC) Nos. 1675 & 1699 of 2013
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Dated this the 10th day of June, 2013
JUDGMENT
ANTONY DOMINIC, J.
Petitioner in O.P.(FC) No.1675/2013 is the husband and the petitioner in O.P.(FC) No.1699 is the wife. Both of them are challenging the order of the Family Court, Thrissur in I.A. No.1798/2012 in O.P. No.880/211. For convenience, we shall refer to the parties as husband and wife and refer to the facts pleaded and documents produced in O.P. No.1699/2013 filed by the wife.
2. O.P. No.880/2011 was filed by the husband seeking a decree for the dissolution of the marriage on the ground that the wife is suffering from unsoundness of mind of incurable nature. In that O.P. the wife filed I.A.No.1798/2012, a copy of which is produced as Ext.P1, under section 36 of the Indian Divorce Act, 1869 (hereinafter referred to as 'Act' for short) claiming alimony of Rs.10,000/- for herself and Rs.7,500/- for the male child.
OP(FC) 1675/2013 and con. case 2 Further she also claimed Rs.25,000/- towards litigation expenses. According to the wife, her husband is the owner of a restaurant and an auditorium at Cheruthuruthy. It is also stated that his father is a Doctor who has established a full-fledged hospital at Cheruthuruthy and that he is helping his father. According to the wife, husband has a monthly income of Rs.75,000/-.
3. Ext.P2 is the counter statement filed by the husband where he denied the claims of the wife and also disputed his liability to pay alimony and the litigation expenses. On Ext.P1 application, the Family Court passed Ext.P3 order and directed payment at the rate of Rs.2,500/- per month to the child and declined the claim of the wife for alimony and litigation expenses. That order was challenged by both sides in O.P.(FC) Nos.2872 and No.3094 of 2012. By Ext.P5 judgment a Division Bench of this Court disposed of the petitions as follows:-
"3. We therefore, set side the impugned order and remand I.A. No.1798/2012 to the OP(FC) 1675/2013 and con. case 3 Family Court, Thrissur. The Family Court is directed to take a fresh decision in the I.A. addressing all relevant issues such as:-
1) The liability of the father to pay pendente lite maintenance in O.P.No.818/2011 in view of section 36 of the Divorce Act.
2) The liability of the husband to pay maintenance to the wife and what if any should be the quantum of interim maintenance payable by the husband as pendente lite alimony of the wife.
3) The eligibility of the wife to litigation expenses, if any, and if so the amount."
4. Accordingly, the matter was reconsidered and Ext.P6 order was passed by the Family Court. In this order, the Family Court held that the child was not entitled for alimony pendente lite in a petition filed under section 36 of the Act. Proceeding further the Family Court upheld the entitlement of the wife for alimony and directed the husband to pay Rs.5,000/- per month from the date of service of notice on him. He was also ordered to pay Rs.10,000/- towards litigation expenses.
OP(FC) 1675/2013 and con. case 4
5. Challenging Ext.P6 order, the wife has filed O.P. (FC) No.1699/2013 for enhancement of the alimony awarded to her and also for payment for the maintenance to the child. The husband has filed O.P. No.1675/2013 seeking to challenge Ext.P6 order granting alimony and litigation expenses.
6. We heard the counsel for both sides. According to the counsel for the wife, although the language of section 36 of the Act provides for payment of alimony to the wife, that does not mean that her claim cannot include amount for the maintenance of the child also. Therefore, according to him, the Family Court erred in denying payment of the amount claimed by the wife for the maintenance of the minor child, who admittedly is in her custody and care. However, counsel for the husband sought to sustain the order of the Family Court denying the benefit to the child and, according to him, payment for the maintenance of the child is not contemplated within the scope of section 36 of the Act. He also brought to our notice the provisions of OP(FC) 1675/2013 and con. case 5 other enactments such as Special Marriage Act, 1954, Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936 and Hindu Adoptions & Maintenance Act, 1956 to drive home his contention that in the Divorce Act, the legislature has consciously confined the benefit of alimony only to the wife.
7. In the light of the aforesaid contention raised before us, the question which arises for our consideration is whether section 36 of the Act enables a wife to claim amount for the maintenance of the child also. Section 36 of the Divorce Act reads thus:-
"36. Alimony pendente lite.-- In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection, the wife may present a petition for expenses of the proceedings and alimony pending the suit.
Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to OP(FC) 1675/2013 and con. case 6 the wife of the expenses of the proceedings and alimony pending the suit as it may deem just;
Provided further that the petition for the expenses of the proceedings and alimony pending the suit, shall, as far as possible, be disposed of within sixty days of service of such petition on the husband."
8. Reading of this provision shows that in any suit under the Divorce Act the wife is entitled to present a petition for expenses of the proceedings and alimony pending the suit. Admittedly, in Ext.P1 what the wife claimed was Rs.10,000/- for herself and Rs.7,500/- for the child. This monetary claim of the wife is contained in para 7 of the affidavit filed in support of the I.A., relevant part of which reads thus:-
"7. I beg to submit that I have no means of income and myself and my child are now depending on my father for our day to day living and sustenance. Since my child is allergic to dust, I was compelled to move from my old house, to my father's house at Pallikara in Ernakulam District. The respondent is legally OP(FC) 1675/2013 and con. case 7 liable to maintain me and my child. Though the respondent is having good financial capacity, ability and ample means to provide maintenance for me and my child, he has failed in his duties and obligations. To conduct the case also I have to incur heavy expenditure. So considering my needs and that of my minor child and the means of my husband, this Honourable Court may be pleased to direct the respondent/husband to pay Rs.25,000/- towards expenses of the proceedings to the petitioner and alimony pendente-lite @ Rs.10,000/- per month for the petitioner and Rs.7,500/- per month to the minor child Geevarghese, born out of this lawful wedlock; from the date of service of summons. If the petition is not allowed, I will be put to irreparable hardship and difficulties. In the interest of justice also my petition may be allowed."
9. Language of section 36 of the Act would show that only the wife is entitled to claim alimony, which expression is understood as an allowance paid to a woman by her husband. However, while providing so, the Legislature did OP(FC) 1675/2013 and con. case 8 not employ any clause narrowing down the scope of the section and indicating that a claim under section 36 of the Act can only be for the benefit of the wife alone. In other words, words of the statute does not prevent a wife from including her claim for alimony amount required for maintaining the child also. In fact the Supreme Court had occasion to consider the scope of section 24 of the Hindu Marriage Act, language which is similar to section 36 of the Act, which provides for payment of maintenance pendente lite . This section also provides that such benefit is payable only to the wife or to the husband. Interpreting this provision, in Jasbir Kaur, Sehgal V. District Judge, Dehradun (1997 (7) SCC 7) the Apex Court held that a wife maintaining a child is entitled to include in her claim for maintenance under section 24 of the said Act, the expenses necessary for maintaining the child also. The relevant portion of the judgment reads thus:
" .. Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the OP(FC) 1675/2013 and con. case 9 proceedings but this section, in our view, cannot be read in isolation and cannot be given restricted meaning to hold that it is the maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter, her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife. We are aware of the provisions of Section 26 of the Act providing for custody of minor children, their maintenance and education but that section operates in its own field."
10. The reasoning adopted by the Apex Court applies to this case also and is a complete answer to the contention urged on behalf of the husband. While considering this issue, we cannot forget the fact that there is no other provision in the Divorce Act entitling the wife to maintain a claim for the maintenance of the child. Therefore, if the argument of the husband is accepted, resultant position would be that in a proceeding under the Divorce Act the wife will be dis-entitled to claim the amount necessary for OP(FC) 1675/2013 and con. case 10 the maintenance of the child and will have to pursue this claim independently under different statutes. Such an interpretation, resulting in multiplicity of proceedings and defeating the rightful claim of destitute woman and children cannot be accepted. Therefore, we are unable to uphold the view taken by the Family Court that in a proceeding under section 36 of the Act a wife is not entitled to claim the amount required for the maintenance of the minor child.
11. What now remains is the quantum of the amount that should be awarded for the maintenance of the child. By November, 2013 the child would be completing 4 years and, according to the counsel for the wife, the child is now attending play school. Irrespective of the dispute regarding the means of the father, in Ext.P4, the counter affidavit filed by him in O.P. No.866/2011 before the Family Court, Thrissur, he has stated that "I am financially sound and capable of catering to all needs of the minor child for both his mental and physical development and the respondent being mentally unsound is incapable of providing the same".
OP(FC) 1675/2013 and con. case 11
12. Therefore, the financial capacity of the father to maintain the child has not been disputed by the him. In such circumstances and also having regard to all the circumstances, we are inclined to think that it would be only reasonable that the father should pay an amount of Rs.2,500/- per month towards the expenses maintenance of the child. Therefore, we direct that the husband, petitioner in O.P. No.1765/2013, shall pay Rs.2,500/- per month to the wife from the date of service of the notice on him, towards maintenance of the child.
13. The wife has claimed enhancement of Rs.5,000/- awarded to her and the husband has sought to set aside this order and also the order requiring him to pay Rs.10,000/- towards litigation expenses. From the order of the Family Court we notice that it was taking note of of all the relevant circumstances, the Family Court awarded Rs.5,000/- per mensem and both parties have not produced any material before us to disagree with the view taken by the Family Court requiring either enhancement or invalidation of the OP(FC) 1675/2013 and con. case 12 alimony awarded to the wife. For this reason itself, we uphold the order directing payment of Rs.10,000/- towards litigation expenses. Therefore, we are not in a position to accept the case of either of the parties and maintain the order as such.
14. It was complained that the Family Court ordered payment from the date of service of notice on the husband and the counsel for the husband contended that the payment should have been from the date of the order. Having considered this contention, we are of the view that fixation of the date from which payment is to be made is entirely within the discretion of the Family Court and we do not see any perversity in its exercise. In such circumstances, we are not inclined to modify that direction also.
15. In the result,
1) O.P. (FC) No.1699/2013 is disposed of setting aside the order of the Family Court to the extent amount claimed for the maintenance OP(FC) 1675/2013 and con. case 13 of the child is denied and the husband, the petitioner in O.P. (FC) No.1675/2013, is directed to pay Rs.2,500/- per month from the date of service of notice on him for the maintenance of the child. The order passed by the Family Court is confirmed in all other respects.
2) O.P. (FC) No.1675/2013 is accordingly dismissed.
ANTONY DOMINIC, JUDGE.
P. D. RAJAN, JUDGE.
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