Ragi.T.P. v. Rajesh M.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942** **OP (FC).No.91 OF 2020** **AGAINST THE ORDER/JUDGMENT IN I.A.NO.1470/2019 IN OP 204/2018 OF FAMILY COURT, OTTAPPALAM** ## **PETITIONER/PETITIONER/1ST RESPONDENT:** **RAGI.T.P., AGED 25 YEARS D/O. THALAYANAPARAMBIL, VEETIL RAMACHANDRAN, VANIYAMKULAM AMSOM, KOTHAYUR DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.JAYARAM** ## **RESPONDENT/RESPONDENT/PETITIONER:** **RAJESH M., AGED 34 YEARS, S/O. MALAMPALLAYIL VEETTIL RAMAN, NEELESWARAM VILLAGE, KARUVACHERY, NEAR KAIRALI CLUB, HOSDURG TALUK, KASARAGOD DISTRICT, P O NEELESWARAM, PIN-673572.** **R1 BY ADV. SMT.D.REETHA** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).No.91 OF 2020 2 ## **JUDGMENT** ## **Dated this the 7th day of January 2021** ## **M.R. Anitha, J.** This original petition has been filed to set aside the order in I.A.No.1470/2019 in O.P.No.204/2018 on the file of the Family Court, Ottappalam. 2. The petitioner is the first respondent in O.P.No.204/2018. The respondent herein filed the above original petition seeking for a decree of divorce alleging that the petitioner voluntarily had sexual intercourse with the second respondent in O.P.No.204/2018. According to the petitioner, she has no job and income and depending upon her brother for her livelihood. She claims an amount of Rs.7,500/- and Rs.5,000/respectively for herself and the minor child towards the interim maintenance from the respondent. She also alleged that she is residing 15 Kms. away from the court premises and requires an amount of Rs.15,000/- towards litigation expenses. Respondent is conducting his own bakery at Nileshwaram market and is getting Rs.2,500 - 3,000/- per day. 3. Respondent filed objection denying his job and income. OP (FC).No.91 OF 2020 3 According to him, he is working in a bakery and is getting only a meagre income. He also contended that the petitioner is leading an adulterous life with the second respondent in the original petition. Hence she is not entitled to get maintenance and litigation expenses. 4. On hearing both sides, the court below allowed the petition in part granting Rs.2,500/- per month to the minor child towards interim maintenance. The court below has taken into account the contention of the respondent that the petitioner is living in adultery with the second respondent and he has sought for divorce on that ground. Hence the learned family court was of the view that if the husband prove the allegations, she is not entitled to get maintenance. Hence the court found that since the husband alleges adulterous life of the wife with the second respondent in the original petition she is not entitled to get interim maintenance and litigation expenses at this stage. 5. It is aggrieved by the said order, the petitioner came up before this Court. 6. Heard both sides. 7. It is to be noted that the relationship between the petitioner and the respondent as husband and wife is admitted. OP (FC).No.91 OF 2020 4 Though the respondent denied his avocation and income as alleged by the petitioner in his counter statement there seems to be no denial of the allegations that the petitioner has no income of her own and is depending on her brother. So the question is whether the allegation of adultery raised against the wife would disable the court in awarding the interim maintenance and litigation expenses. 8. Section 24 of the Hindu Marriage Act,1955 (hereinafter be referred as the Act) clearly provides that in any proceeding under the Act if it appears to the court that either the wife or the husband has no independent income sufficient for his or her support and to meet the necessary expenses of the proceedings it may on the application of the wife or the husband order to pay the petitioner the expenses of the proceedings and monthly maintenance. So the question would be whether the fact that an allegation of adultery has been raised by the husband would enable the court to refuse a statutory right vested upon a party. It is to be remembered in this context that only an allegation of adultery has been raised by the respondent husband against the petitioner and it is a fact yet to be proved by adducing evidence by the respondent to the satisfaction of OP (FC).No.91 OF 2020 5 the court. So the stand taken by the learned Family Court Judge in denying a special benefit reposed upon a party based on a ground alleged in the petition for divorce according to us cannot be sustained in law. If such a position is accepted, in every case an unscrupulous husband or wife, as the case may be, can raise such allegations against the spouse and avoid of the liability to pay the litigation expenses and interim maintenance. That according to us, will not be the legislative intention while such a provision has been introduced in the Act. It is relevant in this context to quote Sushila Viresh Chhadea v. Viresh Nagshi Chhadea (AIR 1996 Bombay, 94) – wherein, in an identical situation it has been held while dealing with interim alimony under Sec.24 of the Hindu Marriage Act, 1955; Sec.24 provides for maintenance pendente lite and expenses of proceedings clearly applies to all proceedings under the Act. It is also held that the impugned order passed by the Family Court deferring the decision till the disposal of main issue of nullity of marriage on the ground of deception or fraud is not sustainable in law. It is also held that Family Court has proceeded on an erroneous assumption that the wife is not entitled to interim alimony because the husband has sued for nullity of marriage. It is also OP (FC).No.91 OF 2020 6 held that the right of a wife for maintenance and Sec.24 of the HM Act which provides for maintenance pendente lite and expenses of proceedings clearly applies to all proceedings under the Act. 9. The right to claim maintenance and expense during pendency of proceedings under the Act is a special right irrespective of the result of the main relief under section.13 of the Act. So in the present case, the denial of the claim of the petitioner for interim maintenance and litigation expense on the ground that the respondent husband sought for divorce on the ground of adultery is not legally sustainable and is liable to be interfered with. 10. The learned counsel for the respondent would content that though the O.P.(div) has been filed way back in 2016 itself this petition under S.24 has been filed only in 2019.Of course that can be taken into account while fixing the quantum of litigation expense and date of fixation of maintenance if the petitioner is otherwise entitled for the same. The grant of maintenance, if allowed, could be only from the date of application. OP (FC).No.91 OF 2020 7 In the result, OP(FC) allowed in part and the impugned order to the extent of refusing pendente lite maintenance to the petitioner and litigation expenses is set aside and the Family Court, Ottappalam is directed to consider I.A.No.1470/2019 afresh and dispose of the same within a period of two weeks from the date of receipt of copy of this judgment and thereafter dispose of O.P.No.204/2018 as expeditiously as possible. **Sd/K.VINOD CHANDRAN JUDGE** shg **Sd/M.R.ANITHA JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PETITION IN O.P.**| |---|---| ||**NO.315/2016, ON THE FILES OF THE FAMILY**| ||**COURT, KASARAGOD.**| |**EXHIBIT P1 (A)**|**TRUE COPY OF THE SUMMONS ISSUED BY THE**| ||**FAMILY COURT, KASARAGOD DIRECTING THE**| ||**PETITIONER HEREIN TO APPEAR BEFORE THAT**| ||**COURT AS 1ST RESPONDENT IN OP NO.315/2016.**| |**EXHIBIT P2**|**TRUE COPY OF THE COUNTER STATEMENT SUBMITTED**| ||**BY THE 1ST RESPONDENT/PETITIONER HEREIN IN O**| ||**P NO.204/2018, ON THE FILES OF FAMILY COURT,**| ||**OTTAPALAM.**| |**EXHIBIT P3**|**TRUE COPY OF THE AFFIDAVIT AND APPLICATION**| ||**IN IA NO.1470/2019 IN OP NO. 204/2018, ON**| ||**THE FILES OF FAMILY COURT, OTTAPALAM.**| |**EXHIBIT P4**|**TRUE COPY OF THE COUNTER STATEMENT SUBMITTED**| ||**BY THE PETITIONER HEREIN IN IA NO.1470/2019**| ||**IN OP NO.204/2018 ON THE FILES OF FAMILY**| ||**COURT, OTTAPALAM.**| |**EXHIBIT P5**|**TRUE COPY OF THE ORDER DT 03/01/2020 IN IA**| ||**NO.1470/2019 IN OP NO.204/2018 ON THE FILES**| ||**OF FAMILY COURT, OTTAPALAM.**| |**ANNEXURE A1**|**MEMO SHOWING SERVICE OF NOTICE ON THE**| ||**RESPONDENT'S COUNSEL IN O.P.NO.204/2018**| ||**BEFORE THE FAMILY COURT, OTTAPALAM**|