Rohini vs R. Durairaj

S. Sardar Zackria Hussain, J.—The wife is the revision petitioner and the revision is directed against the order passed by the Family Court,

Coimbatore, in LA. No.436 of 2002, which is filed for claiming interim maintenance from the respondent/husband at the rate of Rs.10,000 per

month, Rs.2,500 towards house rent per month and also a sum of Rs. 15,000 towards legal expenses.

The petition for interim maintenance was opposed by the respondent and in his counter, he has stated that the petitioner is in a position to

maintain herself and she is getting income from the ancestral properties in which she has got 1/3rd share. It is further stated in the counter that one

of the ancestral properties situated in G.S.Nos. 174/1 and 174/2 in Ganapathy P.N. Palayam measuring about 90 cents of land and building, from

which a sum of Rs.30,000 is getting by way of monthly rent, in which the share of the petitioner is Rs.10,000 per month. The petitioner has also

got 1/3rd share in the properties situated at door Nos.295 to 305 in Sarojini Street, Sidhapudur. It is further stated the petitioner has got 1/3rd

share in the house properties situated at door Nos. 123 to 126 in N.G.R. Street, P.N.Palayam, in which one of the houses is occupied by her

family and the other houses are rented out. An agreement of sale was entered for Rs.32 lakhs in respect of the houses at Siddhapudur and 30

cents in Ganapathy P.N. Palayam has been sold, in which the share of the petitioner would come to several lakhs of rupees.

After enquiry, the trial Court considering the objections put forth by the respondent, dismissed the petition, which made the wife to file the

present revision.

In her evidence before the trial Court, the petitioner has stated that her father died on 17.8.2003, the petitioner and the respondent got married

on 1.2.1990 and inasmuch as the father of the petitioner died on 17.8.2003, the petitioner would have got her share from the ancestral properties.

During the cross-examination, it was also admitted by the petitioner that one of the properties allotted to her share was mortgaged for Rs.3 lakhs

to Coimbatore City Co-operative Bank as per Ex.R-5 mortgage deed. As rightly pointed out by the trial Court, the respondent has not been

cross-examined with regard to the rental income received by the petitioner. The respondent was cross-examined to the effect that he does not

know as to who are the tenants and how much rent is received. Therefore, it is clear from the evidence adduced by the petitioner and the counter

filed by the respondent that the petitioner/wife has got sufficient means to maintain herself.

As per Section 24 of the Hindu Marriage Act, 1955, only if the wife is unable to maintain herself she will be entitled to get maintenance from her

husband. In Baboolal Vs. Smt. Prem Lata, Rajasthan High Court held that in the application filed by the wife u/s 24 of the Hindu Marriage Act,

maintenance pendente lite could be granted only if she has no independent income of her own sufficient for her support. The Supreme Court in

Amarjit Kaur Vs. Harbhajan Singh and Another, held that in an application u/s 24 of the Hindu Marriage Act, relevant consideration for grant of

maintenance pendente lite is that the spouse seeking maintenance should not have independent income sufficient for her/his support. Both the

decisions have been relied on by the learned counsel for the respondent/husband.

Learned counsel for the petitioner referred to the decision of this Court in A.S.Ramadass v. N. Malathi, 1999 T.L.N.J. 276. In the said decision

it is held that the burden is on the husband to prove about his financial status in the application filed by wife for maintenance.

The decisions relied on by the learned counsel for the respondent are squarely applicable to the facts of the present case, whereas the decision

relied on by the learned counsel for the petitioner is not applicable to the facts of the present case. Considering the fact that the petitioner has got

sufficient means to maintain herself, the trial Court rightly dismissed the petition filed for interim maintenance as stated above. Hence there is no

reason to interfere with findings of the trial Court and the same is confirmed.

In the result, the revision petition is dismissed, confirming the order dated 29.4.2004 ''in LA. No 436 of 2002 in H.M.O.P. No. 413 of 2001

passed by the Family Court, Coimbatore. No costs.