K. Kamaraj vs Valarmathi

G. Rajasuria, J.—Inveighing the order dated 07.11.2006, passed by the Family Court at Pondicherry, in I.A. No. 89 of 2006 in MOP No.

26 of 2005, this civil revision petition is focussed.

Despite printing the names concerned, none appeared.

An epitome and summation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run

thus:

The revision petitioner filed M.O.P. No. 26 of 2005 u/s 13(1)(i-a) of CPC as against the wife seeking divorce. While so, the respondent filed I.A.

No. 89 of 2006 seeking interim maintenance for herself and the minor child and litigation expenses. The court awarded a sum of Rs. 2,000/-

payable every month by the husband to the wife and the minor child towards such maintenance as well as litigation expenses. Being disconcerted

and aggrieved by the order of the lower Court, this revision has been filed on various grounds inter alia thus:

The lower Court failed to note that the respondent is capable of maintaining herself and her minor child; she behaved cruelly to her husband and

she committed adultery also; in the absence of any evidence to prove the actual income of the husband, the lower Court was not justified in

awarding such huge compensation; the lower Court ignored the factum of the husband getting only a sum of Rs. 2,123/- as consolidated amount.

A poring overand perusal of the typed set of papers including the copy of the order of the lower Court would evince and display that the

husband is imputing adultery on the part of the wife in addition to alleging cruelty on her part towards her husband.

At this juncture, my mind is redolent and reminiscent of the decision of the Hon''ble Apex Court reported in Amarjit Kaur Vs. Harbhajan Singh

and Another, . An excerpt from it would run thus:

Section 24 of the Hindu Marriage Act, 1955 empowers the court in any proceeding under the Act, if it appears to the court that either the wife

or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it

may, on the application of any one of them order the other party to pay to the petitioner the expenses of the proceeding and monthly maintenance

as may seem to be reasonable during the proceeding, having regard to also the income of both the petitioner and the respondent.

A bare reading of the precedent of the Hon''ble Apex Court would unambiguously and unequivocally highlight and spotlight the fact that the plea of

the husband imputing adultery on the part of the wife should not be taken as an embargo for the trial Court ordering interim maintenance, because

such plea of adultery could be decided only while deciding the main O.P. for divorce.

Here the relationship between the revision petitioner and the respondent is an admitted one as that of husband and wife and in such a case, the

liability of the husband is to maintain the wife subsists. However, the revision petitioner would disown his paternity towards the child Sriram. There

is no iota or miniscule, shred or shard of evidence to prove and establish that the wife is employed or having any source of income to maintain

herself and her child; to keep the wolf from the door; to keep the pot boiling, to meet her creature comforts; to keep her body and soul together.

Reasonable amount and not pittance as interim maintenance should be awarded by the lower Court. The needy dependants in matrimonial matters

should not be given to understand that awarding interim maintenance is only an eye wash or a bare and sheer namkevasta one.

The fact that the husband is a Government servant is an admitted fact. However he would contend that he is earning a sum of Rs. 2,123/- as

consolidated amount for which he has not chosen to produce any salary certificate. As per Section 106 of the Indian Evidence Act, the husband

was expected to produce necessary documents which he was capable of producing before the lower Court for proving his actual income, but he

failed to do so, whereby allowing the lower Court to draw adverse inference as against him.

I would like to refer to Section 112 of the Indian Evidence Act, which is extracted here under for ready reference:

Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between

his mother and any man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that

he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could

have been begotten.

A bare perusal of the averments in the MOP itself would indicate and evince, that during the wedlock of the petitioner and respondent alone the

child was born. As such, while considering the interim application for maintenance, the contention of the revision petitioner that the child was not

born to him cannot be an embargo for awarding interim maintenance payable by the revision petitioner in favour of the minor child and it is for the

revision petitioner to prove his plea during the enquiry in the main MOP. As such, the liability of the revision petitioner to pay interim maintenance

to his minor child subsists, as correctly and appositely held by the lower Court.

The affidavit of the wife accompanying the I.A. No. 89 of 2006 would reveal that the petitioner is a Government servant getting a salary of Rs.

10,000/- per month. Even though the husband was capable of proving precisely his actual salary, nevertheless he has not chosen to do so,

whereby he virtually admitted his financial wherewithal.

Over and above that, one important fact to be noted is that for the maintenance of the respondent as well as her minor child and for litigation

expenses, totally per month a meagre sum of Rs. 2,000/- alone was awarded by the lower Court, which by no stretch of imagination could be

found fault with or looked askance at.

In the present day cost of living, even at the rock- bottom level, an adult lady and her minor child would require certainly more than Rs.

2,000/- per month. But the lower Court awarded only a sum of Rs. 2,000/- per month and that amount includes even her transport expenses from

Thiruvathigai Village to Court. As per the petitioner the said Village is 25kms away from the Court. No doubt, normally the Court is expected to

award separately towards interim maintenance and litigation expenses. In respect of attending the Court by the respondent/wife, on hearing basis,

travelling expenses and meals expenses could be awarded. But in this case, the Court taking into consideration the fact that the respondent was

attending presumably by commuting bus service from 25kms away from the Court, awarded cumulatively such amount. The Court also has not

awarded separately any amount towards litigation expenses. As such, to the risk of repetition without being tautologous I would hold that the very

awarding of sum of Rs. 2,000/- (Rupees two thousand only) under three heads viz., (i) interim maintenance towards wife, (ii) interim maintenance

towards minor child and (iii) litigation expenses, totally to a tune of Rs. 2,000/- per month warrants no interference. Accordingly, I could see no

merit in this revision petition and as such, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.