Madras High Court
Dr.Rajiv Verghese vs Rosy Chakkrammakkil Francis on 1 December, 2022
Author: V.Velumani
Bench: V.M.Velumani
C.M.A.No.1539 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2022
CORAM:
THE HON'BLE MS.JUSTICE V.M.VELUMANI
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.1539 of 2022
and
C.M.P.No.11428 of 2022
Dr.Rajiv Verghese ... Appellant
Vs.
Rosy Chakkrammakkil Francis ... Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 19 of the
Family Courts Act, 1984 r/w. Section 55 of the Indian Divorce Act 1869,
against the order dated 14.06.2022 passed by the learned VII Additional
Principal Judge, Family Court, Chennai in I.A.No.1 of 2019 in I.D.O.P
No.1284 of 2019.
For Appellant : Mr.B.Vijay
for Mr.S.Namasivayam
1
https://www.mhc.tn.gov.in/judis
C.M.A.No.1539 of 2022
For Respondent : Mr.Rahul Jagannathan
JUDGMENT
[Judgment of the Court was made by SUNDER MOHAN, J.] The appellant/husband aggrieved by the order passed by the learned VII Additional Principal Judge, Family Court, Chennai in I.A.No.1 of 2019 in I.D.O.P.No.1284 of 2019, directing him to pay maintenance of Rs.1,75,000/- per month to the wife, the respondent herein, has preferred the present appeal.
2. Heard Mr.B.Vijay, learned counsel appearing on behalf of the appellant/husband and Mr.Rahul Jagannathan, learned counsel appearing for the respondent/wife.
3. The brief facts of the case is as follows:
a)The appellant had filed a petition for divorce in I.D.O.P.No.1284 of 2019 under Section 10(i) of the Indian Divorce Act, 1869 stating that the marriage between him and the respondent herein was solemnized on 15.09.2008 in Chennai. The appellant and the respondent were 2 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 divorcees from the previous marriage and got remarried in the year 2008.
The appellant, out of his first wedlock, had a son. The respondent herein/wife had no issue. After marriage, it appears that the appellant and the respondent developed incompatibility. The appellant therefore filed a petition for divorce, alleging cruelty citing various incidents and prayed for dissolution of their marriage.
b)Pending divorce petition, the respondent herein filed an application in I.A.No.1 of 2019 in I.D.O.P.No.1284 of 2019, praying for a maintenance of Rs.2,50,000/- per month along with litigation expenses to the tune of Rs.2 lakhs. The respondent claimed that the appellant is working as a Cardiologist in M.J. Hospital, Cochin and drawing a monthly salary of Rs.1,50,000/-. That apart, he had entered into a joint venture agreement with M/s.Abad Builders, Cochin, by virtue of which he is earning a sum of Rs.20 lakhs per month. The appellant is also earning rental income from his properties in Cochin to the tune of Rs.2,73,000/- and another sum of Rs.20,000/- from his house at Chennai. 3 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 The appellant owned two flats one worth Rs.1.5 Crores and other worth about Rs.70 lakhs, 3 shops worth Rs.30 to 40 lakhs and two storeyed building worth about Rs.5 Crores to Rs.6 Crores. Apart from this, he owned properties in various places in Chennai, Cochin, ECR and OMR valued at several Crores. He is the only son to his parents. His father is no more. His mother is aged about 93 years. He is managing all the properties and enjoying the income from them. She further stated that though she was educated and qualified, she was forced to leave her job after marriage and in the 10 years of her marital life, she lost touch with the subjects and has now become incapable of getting any employment. The respondent was forced to leave the matrimonial home on account of the appellant's conduct and therefore, she prayed for maintenance as aforesaid.
c)The appellant on the other hand, denied all the allegations made in the petition for interim maintenance. He had stated that the averments as regards his income has to be established by the respondent and she 4 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 had quoted imaginary figures. He owned a property in Porur, which is under mortgage with the bank and he is paying an EMI of Rs.49,500/- per month. He jointly owns two properties one at ECR and OMR along with the respondent and the ECR property is also under mortgage under Corporation Bank wherein he is paying a sum of Rs.34,000/- as EMI. Besides the above, he is also paying Rs.24,500/- as EMI for his car. The respondent is a Post Graduate and capable of earning a sum of Rs.50,000/- per month. She was earlier employed and therefore, the averments that she is incapable of getting employment, is false. The appellant has to take care of his aged mother, who is sick and has to spend for her medical expenses. He had a son through the first marriage and the appellant has to spend money for his educational as well as medical expenses. Therefore, the appellant prayed that the petition for maintenance, is to be dismissed.
d)Before the learned VII Additional Principal Judge, Family Court, Chennai, the respondent examined herself as P.W.1 and marked 5 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 Exhibits P1 to P5 to substantiate her claim for maintenance and the appellant had examined himself as R.W.1 and marked Exhibits R1 to R3 on his side.
e)The Family Court on perusal of the documents produced on behalf of the respondent namely, Exs.P1 to P5 found that a sum of Rs.1,75,000/- per month would be a reasonable amount towards interim maintenance considering the status, standard of living, income and assets of the parties and directed the appellant accordingly.
f)Aggrieved over the same, the present appeal has been filed by the husband/appellant herein.
4. When the matter was taken up for hearing, the learned counsel appearing for the respondent raised a preliminary objection stating that the order passed under Section 36 of the Divorce Act, 1869 was an interlocutory order and no appeal would lie against the said order as per 6 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 Section 19(1) of the Family Courts Act, 1984. The learned counsel relied upon the decision of the Bombay High Court in the case of Dr.Sarika Akshay Ranade Vs. Dr.Akshay Arun Ranade reported in 2021 (6) Mh. L.J. 300, wherein a learned Single Judge of the Bombay High Court had held that, an order under Section 24 of the Hindu Marriage Act for maintenance pendente lite is an interlocutory order and, an appeal under Section 19(1) of the Family Courts Act, is not maintainable. The learned counsel further submitted that as per Section 28 (2) of the Hindu Marriage Act, an appeal shall lie only as against the order passed by the Court under Section 25 or 26 and no appeal is provided as against an order under Section 24 of the HM Act.
5 (i). The learned counsel appearing for the appellant submitted that the learned Single Judge of this Court in a judgment in P.T. Lakshman Kumar Vs. Bhavani reported in 2013 (3) CTC 166 had held as follows:
“19.In view of the above legal position, now the question is, whether an order under Section 24 7 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 of The Hindu Marriage Act involves any adjudication and conclusive determination of any of the rights of the parties. Undoubtedly, it is the right of the spouse, to get monthly allowance for his/her support till the disposal of the main case and also to get litigation expenses from the other. This right is adjudicated upon and conclusively determined in an order under Section 24 of the Hindu Marriage Act. This decision is final and the same will have no bearing in the main case. This is conclusive and so, it is a judgment for the purposes of Section 19(1) of The Family Courts Act and thus, it is appealable.” 5 (ii). The learned counsel further submitted that the learned Single Judge of this Court had elaborately considered all the provisions under the Hindu Marriage Act and the Family Courts Act and ultimately held that, an application under Section 24 of the Hindu Marriage Act is the right to claim interim maintenance till the disposal of the main case which is an independent right. This is not dependent on the final outcome of the case. The learned counsel also relied upon the judgment of the Rajasthan High Court in the case of Kavita Vyas Vs. Deepak Dave 8 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 reported in 2018 (3) CTC 577 wherein it had quoted with approval the judgment of this Court in P.T.Lakshman Kumar's case (supra). The Rajasthan High Court held as under:
“16.What is noticeable in sub-section (1) of section 19 of the Family Courts Act, 1984 is that it has deviated from section 96 of the Code of Civil Procedure and from sub-section (1) of section 28 of the Hindu Marriage Act, 1955, in that, it provides for appeals against judgment. The Code of Civil Procedure does not provide for an appeal against judgments. It provides for an appeal against decrees and orders. Likewise section 28 of the Hindu Marriage Act, 1955 also does not provide for appeals against judgment. It provides for appeals against decrees and certain orders.”
6. Before we proceed to discuss the case on merits, we propose to decide the maintainability issue raised by the respondent herein/wife. Firstly, it has to be noted that the order passed by the learned VII Additional Principal Judge, Family Court, Chennai, is not under the Hindu Marriage Act. Therefore, referring to the provisions of Hindu 9 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 Marriage Act may not be of any use while deciding the question raised by the respondent. The order passed by the Family Court is under Section 36 of the Divorce Act, 1869. It is true that the said provision is similar to Section 24 of the Hindu Marriage Act. However, the appellate provision in the Hindu Marriage Act and the Divorce Act are different. There is no provision similar to Section 28(2) of the Hindu Marriage Act in the Divorce Act. Section 55 of the Divorce Act reads as follows:
“55.Enforcement of, and appeal from, orders and decrees- All decrees and orders made by the Court in any suit or proceeding under this Act shall be enforced and may be appealed from, in the like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from, under the laws, rules and orders for the time being in force:
No appeal as to costs-[Provided] that there shall be no appeal on the subject of costs only.” 10 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022
7. Therefore, the only question is to be decided as to whether an order passed under Section 36 of the Divorce Act, 1869 which provides for pendente lite alimony to the wife, is appealable or not. The nature of the proceedings and order has to be understood in order to determine whether the order passed in those proceedings would be interlocutory or otherwise. The Hon'ble Apex Court had occasion to consider the scope and meaning of the word “interlocutory” in Madhu Limaye Vs. State of Maharastra reported in 1977 (4) SCC 551. The Hon'ble Supreme Court, while considering the meaning of the expression “interlocutory order” under Section 397 of the Cr.P.C., held that, there are orders which are purely and simply interlocutory; there are orders which are final; and there are orders which will fall in between the two. The orders which fall in between the two cannot be called as “interlocutory order” and they would be called as Intermediate orders. Those orders are such if given in one way, will finally dispose of the matter in dispute but, if given in the other will allow the proceedings to go on. The learned single Judge in P.T.Lakhsman Kumar's case (supra) held that an order passed under 11 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 Section 24 of the Hindu Marriage Act is a Judgment. The learned Judge further held that even assuming that it is an order it, is neither an interlocutory order nor a final order; but it is an intermediate order and therefore, appealable under Section 19(1) of the Family Courts Act.
8.We are in respectful agreement with the view taken by the learned Judge of this Court in P.T.Lakshman kumar's case (supra) that an order passed under Section 24 (1) of the Hindu Marriage Act is appealable under Section 19 (1) of the Family Courts Act. The same would apply for an order passed under Section 36 of the Indian Divorce Act. However, we would like to give our own reasons for stating as to why the order passed under Section 36 of the Divorce Act, 1869 or under Section 24 (1) of the Hindu Marriage Act is appealable under Section 19 (1) of the Family Courts Act. Section 55 of the Indian Divorce Act 1869 provides for an Appeal as against all decrees and orders made by the Court in any Suit or proceedings, under the laws, rules and orders for the time being in force. However, Section 19 (1) of the Family Courts Act 12 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 provides for an Appeal against a Judgment and an order not being an interlocutory order. In our view we need not go into the question as to whether the order passed under Section 24 (1) of the Hindu Marriage Act or under Section 36 of the Divorce Act, 1869 is a Judgment or not. It is an order. The only question therefore to be determined, is whether the said order is an interlocutory order for which an appeal is not maintainable under Section 19 (1) of the Family Courts Act. The meaning of the word interlocutory has to be understood in order to appreciate whether the order passed under Section 36 of the Divorce Act, 1869 or under Section 24 (1) of the Hindu Marriage Act is an interlocutory order or a final order. It would be useful to refer to the following observations of the Hon'ble Apex Court in Madhu Limaye Vs. State of Maharashtra reported in 1977 4 SCC 551;
“12. Ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term “final order”. In volume 22 of the third edition of Halsbury's Laws of England at p. 742, however, it has been stated in para 1606: 13
https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 “... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.” In para 1607 it is said:
“In general a judgment or order which determines the principal matter in question is termed ‘final’.” In para 1608 at pp. 744 and 745 we find the words:
“An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment, are to be worked out, is termed ‘interlocutory’. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.”
9. The Hon'ble Apex Court had quoted the meaning given in 14 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 Halsbury's laws of England to the expression interlocutory order. In para 1607 of Halsbury's law in England (III Edition Vol.22) the order which is final has been defined as follows; “In general a judgment or order which determines the principal matter in question is termed ‘final’.” The nature of the proceedings under section 24 (1) of the Hindu Marriage Act or 36 of the Indian Divorce Act is such that it is unrelated to the litigation pending before the parties. The only link is that the said order is valid only for the limited period of pendency of the Suit. All that it provides for is maintenance to be provided to the wife pending litigation between the parties. Therefore, the question to be determined in the said proceedings is whether the wife is entitled to maintenance and if so the quantum of maintenance pending the suit / proceeding. This question is finally determined in that application and therefore, it is a final order by applying the definition given in the Halsbury's laws of England. The principal matter that is determined in the proceedings under Section 24 (1) of the Hindu Marriage Act or 36 of the Indian Divorce Act is whether the wife is entitled to maintenance pending any 15 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 litigation between the parties. The order passed in the said petition is final as it determines the principal matter in question (i.e.) Whether the wife is entitled to maintenance pending any suit / proceedings before the parties. An interlocutory order is an order which does not deal with the final rights of the parties or decides the principal matter in question. An order under Section 36 of the Indian Divorce Act or under Section 24 (1) of the Hindu Marriage Act may be valid for a limited period i.e. till the suit / proceedings are finally concluded between the parties. Distinction has to be made between the interim / interlocutory order and a final order which is valid for a particular period. Applying the definition in Halsbury's laws of England, we have no hesitation to conclude that an order passed under Section 24 (1) of the Hindu Marriage Act or under Section 36 of the Indian Divorce Act, 1869 will fall under the definition of 'final' order. Therefore, we are not in agreement with the decision of the learned Single Judge of the Bombay High Court and therefore, we hold that an order passed under Section 36 of the Divorce Act or Section 24 of the Hindu Marriage Act is an appealable order under Section 19 of 16 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 the Family Courts Act.
10. As regards quantum of Maintenance, the learned counsel for the appellant submitted that the Family Court had not made any discussion or given any reasons as to how it had arrived at the figure of Rs.1,75,000/- as maintenance payable to the wife. Even according to the respondent, the appellant was not regular in his profession and had not taking his profession seriously. The respondent has not established the appellant's income and had given imaginary figures to claim an exorbitant sum of Rs.2,50,000/- which can by no means be called as maintenance amount. A claim made for luxurious living is not what is contemplated under the Act and it has to be an amount commensurate to maintain herself pending litigation. The Family Court had simply referred to the documents without any discussion and arrived at the magic figure of Rs.1,75,000/- without any basis.
11. The learned counsel for the respondent took us through the 17 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 contents of the exhibits marked by the respondent before the Family Court, Chennai. Ex.P2 is an agreement entered into between the appellant and an Hospital in Kerala wherein the hospital agreed to pay a monthly salary of Rs.1,25,000/- to the appellant. Further, the agreement provided for 70% share to the appellant in the profit of the hospital. That apart, the lease agreement entered between the appellant and his mother on one hand and Mr.Jijo George, the lesseee on the other hand dated 01.06.2018 (Ex.P.3) would show that the appellant along with his mother was getting a monthly rent of Rs.2,73,301/-. The respondent further took us through Ex.P4, an agreement of sale entered into between the appellant and his mother on one side and M/s.Abad Builders Private Limited, wherein it is stated that the builder would pay the appellant and his mother the sale consideration in monthly installment of Rs.20 lakhs.
The learned counsel further submitted that the Family Court, Chennai therefore had taken into consideration all these facts and rightly concluded that the respondent is entitled to Rs.1,75,000/- as interim maintenance.
18 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022
12. We have considered the submissions made by the learned counsel on either side and also perused the pleadings, oral and documentary evidence available on record.
13.Ex.P.2 relied upon by the Respondent would show that the Hospital in Kerala agreed to pay a sum of Rs.1,25,000/- per month as salary to the appellant in the year 2017. The lease agreement produced by the respondent namely, Ex.P3 is of the year 2018. The joint venture agreement is of the year 2015. The joint venture agreement provides for paying the sale consideration in instalments. There is no evidence to suggest that the appellant is still receiving the said amount from the builder. In any case, the sale consideration received by the appellant cannot be treated as 'monthly income'. The bank statements marked as Ex.P1 pertains to a few months in the years 2017, 2018 and 2019. Those statements cannot help us to determine the present income of the appellant. Therefore, we are not taking into consideration those 19 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 documents for the purpose of deciding the quantum of maintenance. However, we find that the appellant is a Cardiologist and he is earning a monthly income of Rs.1,25,000/-. The learned counsel for the respondent submitted that the appellant is earning a profit in the said hospital which is disputed by the appellant. We cannot assume the profit or loss in the hospital and make any conclusion. However, the monthly income of the appellant has been established through Ex.P.2. Further, the respondent has established that the appellant is receiving rental income. The lease deed Ex.P.3 shows that the appellant and his mother jointly received a rent of Rs.2,73,301/- per month, which means that the appellant received half of the said amount. Therefore, we have no hesitation to conclude that the respondent had established the appellant's income per month atleast to the tune of Rs.2.5 lakhs per month.
14. In view of the above and considering the status of the parties and the standard of living that the respondent was accustomed to in the matrimonial home and the fact that she had sacrificed her employment 20 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 after the marriage, we are of the view that the respondent is entitled to maintenance and we determine the maintenance at one third of the appellant's income i.e., Rs.80,000/- per month. Further, we make it clear that this determination of maintenance is only for the interim period pending divorce petition filed by the appellant. We also make it clear that any observation made by us in this order is only for the purpose of this appeal and the same shall not influence the Family Court to determine any other claim for maintenance made by the respondent under any other provision of law. The Family Court shall consider such a claim without being influenced by the observations made by us on the basis of the evidence let in by the parties therein.
15. With the above observations, the Civil Miscellaneous Appeal stands partly allowed, by directing the appellant to pay a sum of Rs.80,000/- per month as interim maintenance to the respondent/wife in I.D.O.P.No.1284 of 2019 on the file of the learned VII Additional Principal Judge, Family Court, Chennai. The Family Court shall dispose 21 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 of I.D.O.P.No.1284 of 2019 as expeditiously as possible and in any event, within a period of six months from the date of receipt of a copy of this order. The order passed by us would take effect from the date of filing of the petition in I.A.No.1 of 2019 till the disposal of the I.D.O.P.No.1284 of 2019 and the appellant shall continue to pay interim maintenance to the respondent wife till the disposal of the I.D.O.P.No.1284 of 2019. Consequently, the connected Miscellaneous Petition is closed. There shall be no order as to costs.
[V.M.V., J.] [S.M., J.] 01.12.2022 Index:Yes/No Order:Speaking/Non Speaking dp/ay 22 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 V.VELUMANI, J.
and SUNDER MOHAN, J.
dp/ay To
1.The VII Additional Principal Judge, Family Court, Chennai.
2.The Section Officer, VR Section, High Court of Madras, Chennai.
JUDGMENT MADE IN C.M.A.No.1539 of 2022 and C.M.P.No.11428 of 2022 01.12.2022 23 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 C.M.A.No.1539 of 2022 V.M.VELUMANI, J.
and SUNDER MOHAN, J.
(Order of the Court was delivered by V.M.VELUMANI,J.) Today, this appeal is listed under the caption 'For being spoken to'.
2. It is brought to the notice of this Court that in Para 3 (a) of the judgment of this Court dated 01.12.2022, it is mentioned as if the petition for divorce in IDOP No.1284 of 2019 was filed under Section 10(i) of the Indian Divorce Act, 1869 instead of Section 10 (i) (x) of the Indian Divorce Act, 1869.
3. In view of the above, paragraph No.3 (a) of the judgment of this Court dated 01.12.2022 reads as follows :
3. The brief facts of the case is as follows :
a) The appellant had filed a petition for divorce in IDOP No.1284 of 2019 under Section 10(i) (x) of the Indian Divorce Act, 1869 stating 24 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 that the marriage between him and the respondent herein was solemnized on 15.09.2008 in Chennai.
The appellant and the respondent were divorcees from the previous marriage and got married in the year 2008. The appellant, out of his first wedlock, had a son. The respondent herein/wife had no issue. After marriage, it appears that the appellant and the respondent developed incompatibility. The appellant therefore filed a petition for divorce, alleging cruelty citing various incidents and prayed for dissolution of their marriage.
4.Registry is directed to issue order copy after carrying out the above correction. The other contents of the judgment of this Court dated 01.12.2022 shall remain unaltered.
(V.M.V., J) (S.M., J) 22.12.2022 rgr/kj V.M.VELUMANI,J.
and 25 https://www.mhc.tn.gov.in/judis C.M.A.No.1539 of 2022 SUNDER MOHAN,J.
rgr/kj C.M.A.No.1539 of 2022 22.12.2022 26 https://www.mhc.tn.gov.in/judis