Madras High Court
R.Vasanthi vs M.Soundararajan on 6 February, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.02.2015 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.R.P (PD) No.2153 of 2012 and M.P.Nos.1 of 2012 R.Vasanthi ... Petitioner vs. M.Soundararajan ...Respondent Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the order of the Subordinate Judge, Tiruchengode dated 10.12.2011 made in I.A.No.160 of 2011 in I.A.No.192 of 2006 in H.M.O.P.No.27 of 2008. For Petitioner : Mr.P.Valliappan For Respondent : Mr.N.Manokaran O R D E R
This revision has been preferred invoking the power of superintendence of this court under Article 227 of the Constitution of India to challenge the order of the learned Subordinate Judge, Tiruchengode dated 10.12.2011 made in I.A.No.160 of 2011 in H.M.O.P.No.27 of 2008 on the file of the said court.
2. The arguments advanced by Mr.P.Valliappan, learned counsel appearing for the petitioner and by Mr.N.Manokaran, learned counsel appearing for the respondent are heard. The materials produced in the form of typed set of papers are also perused.
3. The petitioner Vasanthi was married to the respondent Soundararajan. The marital life was not happy and the respondent filed H.M.O.P.No.27 of 2008 on the file of the trial court for dissolution of marriage under Section 13(1)(i) and 13(1)(ia) of Hindu Marriage Act, 1955 on the grounds of adultery and cruelty. One Shankar was also arrayed as the second respondent in the HMOP alleging to be the adulteror. Pending disposal of the HMOP, the petitioner filed an application in I.A.No.192/2006 claiming litigation expenses and interim maintenance. The said application was allowed and the respondent herein was directed to provide interim maintenance at the rate of Rs.750/- per month. The respondent was paying the amount in accordance with the said order made in I.A.No.192/2006.
4. Subsequently in 2011, the petitioner filed I.A.No.160/2011 citing Section 25(2) of the Hindu Marriage Act, 1955 as the appropriate provision, seeking modification of the order of the interim maintenance/enhancement of interim maintenance from Rs.750/- per month to Rs.3,000/- per month. The said petition came to be dismissed by the trial court by order dated 10.12.2011 holding that the second application for interim maintenance or for modification of the order of interim maintenance would not be maintainable. The legality and sustainability of the said order of the learned Subordinate Judge, Tiruchengode are questioned in the present revision.
5. It is the contention of the learned counsel for the petitioner that the learned Subordinate Judge, Tiruchengode committed an error in law in holding that a second application for modification/enhancement of the interim maintenance would not be maintainable. In support of his contention, the learned counsel for the petitioner relied on the order of a learned single judge of this court in J.Anitha vs. J.Prakash reported in 2009 (5) CTC 449, wherein it was held that, though there is no specific provision in Section 24 of the Hindu Marriage Act, 1955 to revise the quantum of maintenance at a later point of time, applying Section 21 of the General Clauses Act, the power to add, amend, vary or rescind the orders of interim maintenance could be read into section 24 of the Hindu Marriage Act, 1955. It was also held that the principle of res judicata would not get attracted in respect of such interim orders, which are always subject to modification depending upon the change of circumstances.
6. Per contra, Mr.N.Manokaran, learned counsel for the respondent would contend that the application itself was filed not under Section 24 of the Hindu Marriage Act but under Section 25(2) of the Hindu Marriage Act and that the power of trial court to vary the order of interim maintenance is not spelt out in Section 25(2) of the Hindu Marriage Act. It is the further contention of the learned counsel for the respondent that even if it is assumed that the citation of wrong provision will not dis-entitle the petitioner from getting the remedy and relief can be granted applying the correct provision of law, namely Section 24 of the Hindu Marriage Act r/w Section 21 of the General Clauses Act, the revision itself has become infructuous in view of the fact that the HMOP has been disposed of pending disposal of the revision.
7. In this regard, it is brought to the notice of the court by the learned counsel for the petitioner that as against the final order passed in the HMOP, an appeal came to be filed before the District Court, Namakkal and it is contended on behalf of the petitioner that the appeal being continuation of the HMOP, it cannot be contended that the civil revision petition has become infructuous. It is the further contention of the learned counsel for the petitioner that Section 25 of the Hindu Marriage Act deals with the power of the court to order maintenance at the time of passing of the decree or at any time after the passing of the decree and that variation or modification of the same shall not take away the right of the petitioner to seek interim maintenance pending disposal of the HMOP and the subsequent proceedings arising there from. It is the further contention of the learned counsel for the petitioner that so far as his/her right to get interim maintenance and litigation expenses pending disposal of the main case is concerned, if the statutory appeals or revisions filed in accordance with the provisions of law are to be treated as infructuous on the ground that the main case itself has been disposed of, the same would result in injustice to the party who have filed such an appeal or revision.
8. The above said contention of the learned counsel for the petitioner deserves serious consideration. However, since the HMOP itself has been disposed of and an appeal has been preferred before the Appellate court, it shall be more convenient to leave the matter to be decided by the appellate court instead of making an attempt to decide the issue in the revision arising out of the interim order made in an interlocutory application filed in the HMOP. Moreover the impugned order itself is not an order on merit and it has been dismissed on the question of maintainability. When the order impugned is not on merit, the proper course to be adopted would be to set aside the order and remit the interlocutory application itself to the lower court for deciding the same on merit, since there will be paucity of materials for rendering a decision on merit in the revision itself and it shall not be proper to remit the interlocutory application to the trial court, since the HMOP itself has been disposed of.
9. It is also brought to the notice of this court that though an appeal was preferred by the petitioner against the decree passed in the HMOP, it was filed with defects, returned and re-presented with a delay and the application to condone the delay in re-presentation came to be dismissed by the appellate court and that as against the order dismissing the application to condone the delay in re-presenting the Appeal memorandum, the petitioner has preferred a civil revision petition on the file of this court and the same is pending.
10. Hence this court is of the view that the interest of justice can be subserved by disposing of the revision and declaring that the impugned order of the trial court dismissing I.A.No.160/2011 as not maintainable is not proper and granting liberty to the petitioner to file a petition before the appellate court in the appeal seeking modification of the interim maintenance awarded by the trial court in I.A.No.192 of 2006.
In the result, the civil revision petition is disposed of declaring that the dismissal of I.A.No.160/2011 on the ground of maintainability is not proper. However, in view of the fact that the HMOP is not pending, I.A.No.160/2011 shall stand dismissed, with liberty to the petitioner to seek enhancement of interim maintenance in the appeal filed against the decree passed in HMOP No.27 of 2008 from the date of presentation of I.A.No.160/2011. Since the appeal itself has not been taken on file and the application to condone the delay in re-presentation came to be dismissed and the same is under challenge in another civil revision petition before this Hon'ble Court, the liberty granted to the petitioner shall be exercised only in the event of appeal being numbered. However, there shall be no order as to cost in the revision. Consequently, the connected miscellaneous petition is closed.
06.02.2015 Index : Yes/No Internet : Yes/No asr To The Subordinate Judge, Tiruchengode P.R.SHIVAKUMAR, J.
asr/-
C.R.P (PD) No.2153 of 2012and M.P.No.1 of 2012 06.02.2015