Radhika Rao d/o Ramakrishnan Potty v Upendra Rao

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 6TH DAY OF APRIL 2017/16TH CHAITHRA, 1939** **OP (FC).No. 3758 of 2013 (R) -----------------------------** **(EA NO.65/13 IN EP NO.75/2012 IN OP NO.1226/2011 OF FAMILY COURT, THIRUVANANTHAPURAM DATED 12/8/2013)** **PETITIONER(S): -------------** **RADHIKA RAO D/O. RAMAKRISHNAN POTTY, AGED 45 YEARS, 34 LILAC TOWER, SERENE CONTRY, TELECOM NAGAR, GANCHIDOWLI, HYDERABAD-32.** **BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SRI.P.S.SURESH KUMAR** **RESPONDENT(S): -------------UPENDRA RAO S/O. KRISHNAN POTTY, AGED 49 YEARS, KRISHANASADANAM, VENKULAM, EDAVA, EDAVA P.O., THIRUVANANTHAPURAM WORKING AS CHIEF ENGINEER (ELECTRICAL), CPF NO. 59940, TATIPAKA GCS, OIL & NATURAL GAS CORPORATION LTD., NAGARAM P.O., MAMIDI, KUNDURU MANDAL, EAST GODAVARI DISTRICT, ANDHRA PRADESH-533247 (NOW WORKING AS DEPUTY GENERAL MANAGER, (ELECTRICAL), CPF NO. 59940, OIL & NATURAL GAS CORPORATION LTD., RAJAMUNDRY ASSET, GODAVARI BHAVAN BASE COMPLEX, RAJAMUNDRY, ANDHRA PRADESH-533106.** **R1 BY ADV. SRI.M.RAJENDRAN NAIR R1 BY ADV. SRI.ABRAHAM P.GEORGE THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23/1/2017 , ALONG WITH OPFC. 4085/2013, THE COURT 06-04-2017 DELIVERED THE FOLLOWING:** ## **OP (FC).No. 3758 of 2013 (R)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1:-TRUE COPY OF THE ORIGINAL PETITION IN OP 1226/2011 ON THE FILE OF FAMILY COURT, THIRUVANANTHAPURAM** **P2:-TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER IN OP 1226/2011 ALONG WITH THE POSTAL ENDORSEMENT** **P3:-TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA 3529/2011 IN OP 1226/2011** **P4:-TRUE COPY OF THE ORDER DTD 12/6/2012 IN IA NO 3529/2011 IN OP 1226/2011** **P5:-TRUE COPY OF THE ORDER DTD 19/11/2012 IN IA 2459/2012 IN OP 1226/2011** **P6:-TRUE COPY OF THE JUDGMENT DTD 30/1/2011 IN OPFC 311/2013 ON THIS HONOURABLE COURT** **P7:-TRUE COPY OF THE JUDGMENT DTD 20/2/2013 IN OP 12226/2011 OF THE FAMILY COURT, THIRUVANANTHAPURAM** **P8:-TRUE COPY OF THE EP 75/2012 IN IA 3529/2011 IN OP 1226/2011** **P9:-TRUE COPY OF THE AFFIDAVIT AND PETITION IN EA NO 65/2013 IN EP 75/2012 IN OP 1226/2011** **P10:-TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT P9** **P11:-TRUE COPY OF THE REJOINDER FILED BY THE PETITIOENR IN EA NO 65.2013 IN EP 75/2012 IN OP 1226/2011** **P12:-TRUE COPY OF THE ORDER DTD 12/6/2013 IN EA 65/2013 IN EP 75/2012 IN OP 1226/2011** **P13:-TRUE COPY OF THE ORDER DTD 7/10/2013 IN E A 90/2013 IN EP 75/2012 IN OP 1226/2011** **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **Rp** **//TRUE COPY//** **PS TO JUDGE** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== OP(FC) Nos. 3758 & 4085 of 2013 ====================== Dated this, the 6[th] day of April, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ These two Original Petitions arise from the same matter and therefore decided by a common judgment. OP(FC) No. 3758/13 is filed by the wife challenging Ext.P12 order by which the Family Court had computed the amount payable by the respondent/husband as interim maintenance during the pendency of OP No. 1226/11 at `1,85,000/-. According to the petitioner, the amount ought to have been `3,25,000/-. 2. The husband had filed OP(FC) No.4085/13 contending that though an application was filed to review Ext.P12 order in OP (FC) No. 3758/13, the same came to be rejected by the Execution Court. It is contended that the amount fixed by the Execution Court was not correct and the payments already made by the petitioner under different enactments was not taken into OP(FC) Nos.3758 & 4085/13 -:2:- consideration. 3. The dispute between the parties is only in regard to the quantum of amount payable as interim maintenance in OP.No.1226/11. The short facts involved would show that the husband filed an application for restitution of conjugal rights as OP No.1226/11. During the pendency of the original petition, the wife filed an application as IA No.3529/2011 for interim maintenance which was allowed as per order dated 12/6/2012 by which direction had been issued to pay interim alimony at the rate of `10,000/- to the wife and `5,000/- each to the minor children and litigation expense of `25,000/-. Thereafter, the husband filed IA No.2459/12 to withdraw the original petition. The same was allowed as per order dated 19/11/2012 on condition of him paying the arrears of interim alimony and litigation expenditure as per order in IA No.3529/2011. He challenged the said order by filing OP(FC) No. 311/2013. This Court observed that the conditions imposed by the Family Court for withdrawing the original petition was not justified. Accordingly, the impugned order was modified and IA No.2459/2012 was allowed without any condition. In regard to OP(FC) Nos.3758 & 4085/13 -:3:- payment of interim alimony until date of withdrawal of the petition, the husband had filed IA Nos. 3717/12 and 3718/12. This Court directed him to prosecute the said matter before the Family Court. Before the Family Court, the husband did not press for IA Nos. 3717/12 and 3718/12. It is under these circumstances that the wife filed EP No.75/12 claiming `3,85,000/- being maintenance for the period from 5/8/2011 till 5/11/2012. The Family Court observed that since there is no specific mention in the order in IA No. 3529/11, from which date the interim maintenance is to be paid, the date of the order was taken as the date for commencement of payment of arrears, i,e., 12/6/2012 and the last date was computed as February, 2013 when the applications IA Nos.3717/12 and 3718/12 was dismissed as not pressed. 4. Heard the learned counsel appearing on either side. 5. Apparently, the application is filed under Section 24 of the Hindu Marriage Act. In _**Nalini v. Velu**_ (1984 KLT 790), a learned Single Judge of this Court held that there is no legal impediment in directing the maintenance to be paid from the date of service of summons of the main petition. This judgment was OP(FC) Nos.3758 & 4085/13 -:4:- rendered approving an earlier judgment in _**Radhakumari v. K.M.K. Nair**_ (1982 KLT 417). 6. Section 24 of the Hindu Marriage Act, 1955 reads as under:- _“_ _**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”_ 7. There is no doubt about the proposition that interim alimony could be directed to be paid from the date of service of summons, but the question is whether it is automatic or whether an order should be passed by the Court directing payment of interim alimony. In _**Sarmi Chatterjee v. Udayan Chatterjee**_ [2013 KHC 3199=AIR 2013 Calcutta 188], a learned Single Judge of Calcutta High Court while considering the scope of Section 24 OP(FC) Nos.3758 & 4085/13 -:5:- relying upon the judgment of the Apex Court in _**Jasbir Sehgal v. District Judge, Deradoon**_ [(1997) 7 SCC 7] held that the Court has a discretion in the matter as to from which date the maintenance under Section 24 of the Act should be granted. It is further held that there is no straight jacket formula for passing an order to pay the monthly alimony pendente lite either from the date of application or from the date of order. The commencement of alimony pendente lite depends upon the facts of each case and it is within the discretion of the Court in the facts of a given case to allow the application directing either of the spouse to pay the maintenance from the date of application or from the date of order. 8. The present claim made by the wife is from the date of service of summons. But the Family Court did not issue any order directing payment of pendente lite maintenance from the date of service of summons whereas direction had been issued as under:- _“In the result, IA stands allowed with modification directing respondent to pay interim alimony at the rate of_ ` _10,000/- to the petitioner and interim maintenance @_ ` _5,000/- each to the two minor children till the disposal of the original petition.”_ OP(FC) Nos.3758 & 4085/13 -:6:- 9. The order does not say from which date the alimony has to be paid in which event it can only be assumed that the order takes effect from the date of the order alone and not from an earlier date. The Apex Court in _**Mansukhlal Vithaldas Chauhan v. State of Gujarat**_ (AIR 1997 SC 3400) had clearly indicated that the right to claim maintenance fructifies on the date of filing of the petition for divorce under the Act. However, it is not always that the Court has to grant the maintenance from that date. The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted and the discretion would depend upon multiple circumstances which are to be kept in view. Under such circumstances, we are of the view that Execution Court was justified in observing that the maintenance is payable only from the date of order in IA No.2459/2012. Therefore there is no reason to interfere with Ext.P12 order dated 12/8/2013 in EA No. 65/13 in EP No.75/2012. 10. Coming to the contention urged by the husband, he claims adjustment of amounts already paid under various other enactments. In so far as the direction is to pay maintenance pendente lite, he is under obligation to pay the same irrespective OP(FC) Nos.3758 & 4085/13 -:7:- of the fact that there is direction to pay maintenance in other cases. The application EA No. 90/2013 has been filed to review the order in EA No.65/2013 and the review petition is maintainable only if there is any error apparent on the face of record. The Family Court did not find that there is any error in order to invoke the review jurisdiction. We are not satisfied with the contention that there is error in computation of the amount by the Family Court. Under such circumstances, there is no basis for the contention urged in OP(FC) No. 4085/13. 11. In the result, no modification is required to the impugned orders. Original Petitions are dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **K.RAMAKRISHNAN, JUDGE** Rp //True Copy// P.S to Judge