Chandran N.K. v. Bindu Chandran

**OP (FC).No.641 OF 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **OP (FC).No.641 OF 2019** **AGAINST THE ORDER IN I.A. 1123/2018 IN OP 663/2017 DATED OF FAMILY COURT,THRISSUR** ## **PETITIONER/S:** **CHANDRAN N.K. AGED 60 YEARS S/O.KRISHNAN, RESIDING AT NELLIKKAL HOUSE, NANNAMUKKU SOUTH POST, MALAPPURAM DISTRICT679575.** **BY ADVS. SRI.N.M.MADHU SRI.P.P.HARRIS SMT.C.S.RAJANI** ## **RESPONDENT/:** **BINDU CHANDRAN AGED 49 YEARS W/O.CHANDRAN, RESIDING AT NELLIKKAL HOUSE, PERAMANGALAM DESOM, VILLAGE AND POST, THRISSUR TALUK AND DISTRICT, PIN-680545.** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON ON 18-02-2021, THE COURT ON THE SAMD DAY DELIVERED THE FOLLOWING:** **OP (FC).No.641 OF 2019** **2** ## **JUDGMENT** **Dated this the 18th day of February 2021** ## C.S.Dias, J. The petitioner in this original petition had filed O.P. No.663/2017 before the Family Court, Thrissur, seeking a decree of divorce against the respondent. In O.P. 663/2017, the respondent filed I.A No.1123/2018 (Ext.P2) under Section 24 of the Hindu Marriage Act, 1955 (in short 'the Act') seeking maintenance pendente lite and expenses of the proceedings. The petitioner filed Ext.P3 written objection to Ext.P2 application. The Family Court by Ext.P4 order directed the petitioner to pay the respondent Rs.3000/- per month as maintenance pendente lite. The petitioner challenged the said order before this Court in O.P (FC) 504/2018. This Court by Ext.P5 judgment set aside Ext.P4 order and directed the Family Court to reconsider Ext.P2 application afresh. Consequent to the remand, the **OP (FC).No.641 OF 2019** **3** Family Court by Ext.P6 order has directed the petitioner to pay Rs.4000/- per month as maintenance pendente lite to the respondent. 2. Aggrieved by Ext.P6 order, this original petition is filed under Article 227 of the Constitution of India. 3. The respondent filed Ext.P2, inter alia, contending that the petitioner was employed abroad, but he is not providing any amount as maintenance to her. The petitioner sold his house and property for an amount of Rs.1,64,00,000/- and he purchased his present residence for Rs.60,00,000/-. The petitioner is in possession of Rs. 1,02,00,000/-. The petitioner is leading a luxurious life. He has deposited the balance sale proceeds in the Federal Bank Ltd and earning interest on the same. Hence the respondent is entitled for an amount of Rs.7,500/- per month as maintenance pendente lite. 4. The petitioner filed Ext.P3 written objection to Ext.P2 application, inter alia, refuting the **OP (FC).No.641 OF 2019** **4** allegations in the affidavit in support of the application. He contended that he is jobless and does not have the means to meet to his basic needs. He is suffering from various ailments. The two daughters of the couple are well employed and are taking care of the petitioner. Hence there is no merit in the application. The petitioner also marked Exts.B1 to B10 documents to substantiate his illness. 5. The Family Court, after considering the pleadings in Exts.P2 and P3 and the materials on record came to the conclusion that the petitioner was conducting a grocery shop and also doing tailoring work and he has sufficient means to maintain the respondent. Accordingly, the Family Court held that the petitioner is liable to pay an amount of Rs.4,000/- as maintenance pendente lite to the respondent. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. **OP (FC).No.641 OF 2019** **5** 7. The sheet-anchor of the learned counsel for the petitioner is that the respondent is not entitled to get an order of interim maintenance in an original petition filed by the petitioner seeking a decree of divorce. According to him, the respondent's remedy lies elsewhere. 8. The learned counsel for the respondent supported Ext.P6 order and contended that there is no error in Ext.P6 order warranting interference by this Court. 9. Section 24 of the Hindu Marriage Act reads as follows: “24. **maintenance pendente lite and expenses of proceedings:-** Where in any proceeding under this Act 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 the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.” **OP (FC).No.641 OF 2019** **6** 10. The Hon'ble Supreme Court in **Manish Jain v Akanksha Jain** [(2017) 15 SCC 801] has held that, while considering an application under Section 24 of the Act, the Court should only take into consideration the status of the parties and capacity of the spouses to pay maintenance and that an award of maintenance pendente lite is a wide discretion vested in the Court. 11. Undisputedly, there is a proceedings before the Family Court filed by the petitioner under the provisions of the Hindu Marriage Act, 1955. 12. Section 24 of the Act provides that either party to the marriage, who has no independent income sufficient to support him/her may file an application in the proceeding and the Court has the power to order the respondent to pay the petitioner in the application maintenance pendente lite and the expenses of the proceedings. 13. In view of the unbridled power vested on the Court under Section 24 of the Act, to award **OP (FC).No.641 OF 2019** **7** maintenance pendente lite and expenses of the proceedings, the contention of the petitioner that the respondent is not entitled to get such an order in an original petition filed by the petitioner is naïve and preposterous. 14. Considering the pleadings, materials on record, Section 24 of the Act and the law laid down in **Manish Jain** (supra) and the above findings, we do not find any error of jurisdiction or illegality in the impugned Ext.P6 order warranting interference by this Court invoking its supervisory jurisdiction as enshrined under Article 227 of the Constitution of India. The original petition is groundless and is resultantly dismissed. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** ## **JUDGE** ## **Sd/-** ## **C.S.DIAS** ## **JUDGE** Ma/19.2.2021 **/True copy/** **OP (FC).No.641 OF 2019** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.663/2017 ON THE FILES OF THE FAMILY COURT, THRISSUR.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 07.03.2018 FILED AS I.A.NO.1123/2018 IN EXT.P1 FILED BY THE RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE COUNTER DATED 17.05.2018 FILED BY THE PETITIONER TO EXT.P2.** **EXHIBIT P4** **TRUE COPY OF THE ORDER DATED 13.07.2018 IN I.A.NO.1123/2018 IN O.P.NO.663/2017 PASSED BY THE FAMILY COURT, THRISSUR.** **EXHIBIT P5** **TRUE COPY OF THE JUDGMENT DATED 25.07.2019 IN O.P.(FC) NO.504/2018.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 19.09.2019 IN I.A.NO.1123/2018 IN O.P.NO.663/2017 PASSED BY THE FAMILY COURT, THRISSUR.**