Hemalatha v. R. Mohan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021/19TH KARTHIKA, 1943 MAT.APPEAL NO.754 OF 2012 AGAINST THE JUDGMENT IN OP 809/2009 OF FAMILY COURT,** **PALAKKAD.** ## **APPELLANTS/PETITIONERS:** 1 HEMALATHA AGED 38 YEARS D/O.V.V.RAMAKRISHNAN,VINAYAKA STREET, VADAKKANCHERY.PO., ALATHUR TALUK,PALAKKAD DISTRICT. 2 SOUMYA AGED 16 YEARS (MINOR) D/O.HEMALATHA,VINAYAKA STREET, VADAKKANCHERY.P.O., ALATHUR TALUK, PALAKKAD DISTRICT 3 GOKUL AGED 10 YEARS (MINOR), S/O. HEMALATHA,VINAYAKA STREET, VADAKKANCHERY.P.O., ALATHUR TALUK, PALAKKAD DISTRICT, PETITIONERS 2 AND 3 ARE REPRESENED BY NEXT FRIEND, MOTHER THE 1ST PETITIONER, HEMALATHA BY ADVS. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN ## **RESPONDENT:** R. MOHAN AGED 45 YEARS S/O.P.A.RAMANATHAN,DOUBLE STREET GRAMAM, VADAKKANCHERY P.O. VADAKKANCHERY, ALATHUR TALUK, PALAKKAD DISTRICT 678101 BY ADV SRI.C.A.CHACKO THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2021 ALONG WITH Mat.Appeal.797/2012, THE COURT ON 10.11.2021 DELIVERED THE FOLLOWING: Mat. Appeal Nos.754 & 797 of 2012 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 MAT.APPEAL NO. 797 OF 2012** **AGAINST THE JUDGMENT IN OP 809/2009 OF FAMILY COURT, PALAKKAD APPELLANT/RESPONDENT:** R.MOHAN AGED 45 YEARS S/O.P.A.RAMANATHAN, DOUBLE STREET GRAMAM, VADAKKANCHERY P.O., VADAKKANCHERY, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER ## **RESPONDENTS/PETITIONERS:** 1 HEMALATHA D/O.V.V.RAMAKRISHNAN, VINAYAKA STREET, VADAKKANCHERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678541. 2 SOUMYA AGED 16 YEARS (MINOR) D/O.HEMALATHA, REPRESENTED BY HER MOTHER, HEMALATHA, D/O.V.V.RAMAKRISHNAN, VINAYAKA STREET, VADAKKANCHERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678541. 3 GOKUL AGED 10 YEARS (MINOR), S/O.HEMALATHA, REPRESENTED BY HIS MOTHER, HEMALATHA, D/O.V.V.RAMAKRISHNAN, VINAYAKA STREET, VADAKKANCHERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678541. BY ADVS.SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2021, ALONG WITH Mat.Appeal.754/2012, THE COURT ON 10.11.2021 DELIVERED THE FOLLOWING: Mat. Appeal Nos.754 & 797 of 2012 3 **A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS, JJ.** ------------------------------------------ Mat. Appeal Nos.754 & 797 of 2012 ------------------------------------------Dated this the 10[th] day of November, 2021 ## **J U D G M E N T** ## **Sophy Thomas, J.** These appeals arise out of the judgment in O.P No.809 of 2009, on the file of the Family Court, Palakkad. The petitioners in the said O.P are the appellants in Mat.Appeal No.754 of 2012 and the respondent therein is the appellant in Mat. Appeal No.797 of 2012. 2. The wife and children filed O.P No.809 of 2009 under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the 'Act') read with Section 7 of the Family Courts Act, 1984, claiming maintenance-past and future, @ Rs.5,000/for the 1[st] petitioner-wife and @ Rs.3,500/- each for the children from the respondent-husband. The Family Court, as per the impugned judgment, rejected the claim of the 1[st] petitioner-wife, and allowed the claim of the children at the rate of Rs.2,000/- each, and authorised the 1[st] petitioner-wife to realise that amount on their behalf. Aggrieved by the rejection of the claim of the 1[st] petitioner and also aggrieved by the quantum of maintenance fixed for the children, the Mat. Appeal Nos.754 & 797 of 2012 4 petitioners in O.P No.809 of 2009 preferred Mat.Appeal No.754 of 2012, and the respondent-husband, aggrieved by the past and future maintenance granted to the children, preferred Mat.Appeal No.797 of 2012. 3. The appellant-wife would contend that even though her marriage with the respondent-husband was dissolved, she is entitled for maintenance under Section 18 of the Act. Moreover, the maintenance awarded to the children is not sufficient to meet their daily needs and educational expenses. 4. Per contra, the contention of the respondent-husband is that, he is not having sufficient income to pay maintenance to the children as ordered by the Family Court. Moreover, in an M.C case filed by the wife and the younger child, a settlement was arrived at, in the year 2008 itself, agreeing to pay monthly maintenance at the rate of Rs.1,500/- to the wife, and Rs.1,000/- to the younger child. Since the wife was subjecting him to matrimonial cruelties, he filed Divorce O.P against her, and it was allowed in his favour, dissolving their marriage. Suppressing the M.C case and its settlement, and also suppressing the factum of divorce, the wife and children filed O.P No.809 of 2009. According to him, the appellant-wife was not entitled to get past or future maintenance under Section 18 of the Act, she being a divorced wife. Mat. Appeal Nos.754 & 797 of 2012 5 5. In these appeals, apart from analysing the correctness of the quantum of maintenance awarded to the children by the Family court, we are called upon to answer the crucial question whether a divorced wife is entitled to get maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. 6. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 reads as follows: **18. Maintenance of wife** .- (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which is wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; Mat. Appeal Nos.754 & 797 of 2012 6 (g) if there is any other cause justifying her living separately. 3. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be Hindu by conversion to another religion...”. 7. It is true that the term 'wife' is not defined under the Hindu Adoptions and Maintenance Act, 1956. So, learned counsel for the appellants would contend that the term 'wife' used in Section 18 of the Act includes 'divorced wife' as stated in explanation (b) to Section 125 Cr.P.C. They relied on a Single Bench decision of the Gujarat High Court in _**Vihalal Mangaldas Patel**_ vs. _**Smt.Maiben Vihalal Patel**_ reported in AIR 1995 Gujarat 88 to support their contention that, Section 18 of the Act when it provides for maintenance for wife, it includes a divorced wife also. Maintenance to the spouse even after the divorce, contained in Section 25 of the Hindu Marriage Act, 1955 has to be read into Section 18 of the Act also, as the legislative intention in both the statutes was to provide maintenance to the spouse, and the same legislature cannot be imputed with two different intentions in respect of the same couple on the same question. According to them, if the provision regarding maintenance is to be applicable both to a wife and a divorced wife under Section 25 of the Hindu Marriage Act, there is no reason why the same word 'wife' which Mat. Appeal Nos.754 & 797 of 2012 7 is used in Section 18 of the Act should not be read in the same manner, because both these provisions deal with the question of maintenance between husband and wife. 8. Two Division Benches of this Court have successively held in _**K.K Rajeevan** vs._ _**C.R Neena and others**_ (Mat. Appeal Nos.67 & 89 of 2006 dated 09.06.2017) and in _**Bindu K.P** vs._ _**Surendran C.K**_ reported in 2018 (2) KHC 1, that a divorced wife is not entitled to claim maintenance under Section 18 of the Act, and she is entitled to make her claim for such maintenance only till the date of divorce, though she may be entitled to claim maintenance under Section 125 Cr.P.C. We are not inclined to deviate from the finding of the Division Benches of this Court, as the wordings in Section 18 of the Act are so clear that, for a wife to seek maintenance under Section 18 of the Act, the subsistence of marriage is a pre- condition. 9. The remedy of maintenance is a measure of social justice as envisaged under the Constitution of India to prevent wives and children from falling into destitution and vagrancy. Though the wife can simultaneously claim maintenance under different enactments, it would be inequitable to direct the husband to pay maintenance awarded in each of the said proceedings, independent of the relief granted in a previous proceeding. The Apex Court in _**Rajnesh** vs._ _**Neha and another**_ reported in (2021) 2 SCC 324 framed guidelines Mat. Appeal Nos.754 & 797 of 2012 8 under Article 142 of the Constitution of India, laying down uniform and consistent standards when there are claims for maintenance under both secular laws and personal laws, and for ensuring timely disposal of applications seeking maintenance under all the applicable statutes. The Apex Court made it clear that a wife can make a claim for maintenance under different statutes; both under secular laws and personal laws, and the mere fact that two proceedings were initiated by a party, would not imply that one would have to be adjourned sine die. But it is inequitable to direct the husband to pay the maintenance awarded in each of the said proceedings independent of the relief granted in a previous proceeding. The Apex Court finally directed that where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set off, of the amount awarded in the previous proceeding, while determining, whether any further amount is to be awarded in the subsequent proceeding. The Apex Court made it mandatory for the applicant to disclose the previous proceeding and the orders passed therein in the subsequent proceeding, and if the order passed in the previous proceeding requires any modification or variation, it would be required to be done in the same proceeding. 10. In O.P No.809 of 2009, the petition filed by the wife will not show anything about the M.C case filed by her or about its settlement. Mat. Appeal Nos.754 & 797 of 2012 9 When examined before court as PW1, she admitted that she had filed M.C No.355 of 2008 before Family Court, Palakkad and it was compromised between herself and her husband, by which the husband agreed to pay monthly maintenance of Rs.1,500/- to her and Rs.1,000/- to her minor son. She further admitted that her husband had filed an O.P for divorce against her, alleging cruelty and harassment, and it was allowed in his favour. It is true that neither the wife nor the husband produced copy of the judgment and decree in the Divorce O.P filed by the husband. But there is clear admission from the part of the appellant-wife, that the Divorce O.P filed by her husband alleging cruelty and harassment from her part was allowed, and she did not file any appeal against that judgment and decree. Admitted facts need not be proved. So, the decree of divorce has become final. 11. Obviously, after compromising the M.C case filed by her, the husband filed Divorce O.P against her, and during pendency of the Divorce O.P, she filed O.P No.809 of 2009 claiming maintenance under Section 18 of the Act suppressing the M.C case and its compromise. As we have already found, for a wife to seek maintenance under the Hindu Adoptions and Maintenance Act, 1956, subsistence of marriage is a pre- condition. Once a wife is divorced, her remedy to seek maintenance is at the time of divorce in a matrimonial petition, or Mat. Appeal Nos.754 & 797 of 2012 10 subsequent thereto is only under the Hindu Marriage Act, 1955 or under explanation (b) to Section 125 Cr.P.C, wherein the term 'wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. 12. Here, the marriage between the 1[st] appellant wife and the respondent husband was dissolved on the ground of cruelty from the part of wife, as admitted by her, and as she had not filed any appeal against that judgment and decree, it has become final. So, as a divorced wife, she is not entitled to claim maintenance under Section 18 of the Act, and her right to claim maintenance under the said Act is only upto the date of divorce. The 1[st] appellant-wife suppressed the M.C proceedings and its settlement, in the O.P filed by her for maintenance under Section 18 of the Act. As directed by the Apex Court in the judgment cited supra, where successive claims for maintenance are made by a party under different statutes, it is mandatory that the applicant has to disclose the previous proceeding and the orders passed therein, so as to consider the adjustment or set off. The Apex Court further went on to say that if the order passed in the previous proceeding(s) requires any modification or variation, it would be required to be done in the same proceeding. The 1[st] appellant was granted maintenance at the rate of Rs.1,500/- on the basis of compromise and if she requires any modification or variation 11 Mat. Appeal Nos.754 & 797 of 2012 in that order, it could be done in the same proceeding as explanation (b) to Section 125 Cr.P.C includes a 'divorced wife' also. Anyhow, the finding of the Family Court that the petitioner-wife is not entitled for maintenance under Section 18 of the Act, as she is a divorced wife is only to be confirmed. 13. The 1[st] appellant-wife would say that the past maintenance of Rs.32,399/- and future maintenance at the rate of Rs.2000/- each granted to the children are too meagre when compared to their needs, and financial status of the respondent-father. The Family Court analysed the evidence in detail, and considering the educational and other expenses of the children and also the financial status of the respondent-husband, awarded that amount, and it is quite reasonable, and therefore, we find nothing to interfere with the quantum of maintenance awarded to the children. 14. The respondent-husband was challenging that award saying that he had no source of income to pay that much of amount, and since he had some vision impairment and asthmatic problem, he returned from Gulf and was conducting a tailoring shop in a rented room. But it has come out in evidence that he was doing real estate business with his brother, and was owning a shopping complex having 12 rooms which were sold out during the relevant period. Moreover, he is running a tailoring shop engaging an employee. As already Mat. Appeal Nos.754 & 797 of 2012 12 found, monthly maintenance at the rate of Rs.2,000/- each awarded to the children in the year 2012 was quite reasonable, and it does not require any interference or modification. Since no illegality or impropriety is noticed in the impugned judgment, we confirm the same. In the result, these Mat.Appeals are dismissed confirming the impugned judgment in O.P No.809 of 2009 of Family Court, Palakkad. The parties shall suffer their respective costs in both the appeals. Return the LCR without delay. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** **SOPHY THOMAS JUDGE** smp