(Prayer: Appeal under Section 19 of the Family Courts Act, 1984 against the Decree and order dated 04.06.2016 of the Principal Family Judge, Coimbatore in I.A.2230 of 2014 in H.M.O.P.561 of 2012.)
S. Manikumar, J.
1. Challenge in this appeal is to the order made in I.A.No.2230 of 2014 in HMOP No.561 of 2012 dated 04.06.2016 on the file of the learned Principal Judge, Family Court, Coimbatore.
2. Short facts leading to the appeal are that the parties are husband and wife respectively. Respondent/wife has filed an application under Section 24 of the Hindu Marriage Act, for a direction to the appellant to pay Rs.10,000/- per month towards maintenance for food, clothing, shelter, medicine and educational expenses of her son Siddharth, and to herself.
3. Contention has been made by the respondent/wife that the marriage between them took place on 01.06.2001 and out of the wedlock, a male child was born on 03.07.2002. At the time of filing of the petition under Section 24 of the Act, son was aged about 12 years. Respondent/wife has further contended that she had filed an application under the Domestic Violence Act, claiming certain reliefs. It was withdrawn.
4. Contending inter alia that her son is studying in a school and that educational expenses and medical expenses were not given by the appellant/husband, and further contending that she is not doing any work and hence not in a position to maintain herself and her son, petition under Section 24 of Hindu Marriage Act, has been filed.
5. Opposing the claim, appellant/husband has contended that a false police complaint was made against him in DVAC Case No.14 of 2011, and it was closed as mistake of fact. HMOP filed for divorce is pending between the parties.
6. Respondent/wife is residing in a portion of the appellant's house and that the appellant/husband, has taken care of both educational and medicinal expenses of his son. Contention has also been made that the respondent/wife is a Beautician and earning Rs.10,000/- per month. For the abovesaid reasons, he has prayed for dismissal of the maintenance petition filed under Section 24 of the Hindu Marriage Act.
7. Respondent/wife examined herself as PW1 and one Suresh has been examined as PW2. Exs.P1 to P7 have been marked. Appellant/husband has examined himself as RW1 and marked Exs.R1 to R6.
8. Adverting to the rival contentions and on appreciation of oral and documentary evidence adduced by both parties, the learned Principal Judge, Family Court, Coimbatore, has found that the respondent/wife is residing in a portion of the appellant's house and as such, there was no need to pay rent. Respondent/wife has also admitted that she is not incurring any expenditure towards electricity and water charges. Going through the documents, the learned Principal Judge, Family Court, Coimbatore, has also found that the educational and medicinal expenses, for the son Siddharth, are taken care of by the appellant/husband.
9. As regards the contention of the appellant/husband that the respondent/wife is a Beautician and earning a some of Rs.10,000/-, respondent/wife has denied earning. Portion of her cross examination extracted in the impugned order before us is as follows:
( Tamil )
10. The Court below, though observed that respondent/wife is capable of earning, held that the appellant/husband has failed to prove that on the date of filing of the petition for maintenance, respondent/wife was earning a sum of Rs.10,000/- as Beautician.
11. Adverting to the contention of the respondent/wife that she was unable to maintain herself and her son, the Court below, has categorically found that inasmuch as health and educational expenses of the minor son, is taken care of by the appellant/husband, there is no need to direct maintenance to the minor son.
12. However, considering the obligations of the husband to provide basic necessities such as food, shelter and clothing, and when the appellant/husband had failed to prove the earning, as contended and taking note of the fact that the appellant/husband is working in Laxmi Agencies Tools for a sum of Rs.8,000/- per month, Court below has held that the appellant/husband has to pay maintenance to the respondent/wife and accordingly, ordered Rs.3,000/- per month, as maintenance to the respondent/wife, from the date of the petition i.e. 19.11.2014. The Court below has further directed the appellant to pay the interim maintenance, every month, on or before 10th of English Calendar month.
13. Though, placing reliance on the decision of the Madhya Pradesh High Court in Smt.Mamta Jaiswal Vs. Rajesh Jaiswal reported in II (2000) DMC 170, Mr.Sharath Chandran, learned counsel for the appellant/husband contended that inasmuch as the respondent/wife has the earning capacity, the Court below ought not to have ordered interim maintenance, this Court is not inclined to accept the said contention. It is true that there is an observation by the lower Court that the respondent/wife is capable of earning. Merely, because the respondent/wife is capable of earning, that does not mean that she is earning and therefore can maintain herself. On the contra, it is needless to state that when the husband is earning, he has a moral and legal obligation to provide, food, shelter, clothing and other basic necessities to his wife, who is not earning. He has to provide the same to their son. However, in the case on hand, Court below has categorically found that the appellant/husband is providing maintenance to son. There is also a categorical finding that the appellant/husband has failed to prove his contention that the respondent/wife is earning a sum of Rs.10,000/- as a Beautician. Finding rendered on appreciation of both oral and documentary evidence, cannot be said to be perverse warranting interference.
14. Though, decision of the Madhya Pradesh High Court [Smt.MamtaJaiswal Vs. Rajesh Jaiswal], is persuasive, on the facts and circumstances ofthe case and when that there is a categorical finding that the respondent/wifeis not earning, we are of the considered view that the appellant/husband has toprovide interim maintenance as ordered. Concurring with the finding, we arenot inclined to entertain this Civil Miscellaneous Appeal. Accordingly, theappeal is dismissed. Appellant/husband is directed to pay Rs.3,000/- per monthto the respondent/wife, as interim maintenance, from the date of themaintenance petition and continue to pay before 10th of every English CalendarMonth. Arrears to be paid within four weeks from the date of receipt of a copyof this order. No Costs. Consequently, the connected Miscellaneous Petition isclosed.