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Leelavathy Vs. Sundar Athmaseelan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 547 of 1976
Judge
Reported inAIR1977Mad409
ActsIndian Divorce Act 1869 - Sections 10 and 36
AppellantLeelavathy
RespondentSundar Athmaseelan
Cases ReferredIn Mary Therezz Parker v. George Doughlas Parker
Excerpt:
.....the earnings of the wife also and that if she has been able to support herself by her own earrings as well as the properties owned by her, she will not be entitled to any alimony pendente lite......and that having regard to his salary, he may be directed to pay a sum of rs. 200 per month towards interim maintenance and rs. 500 towards costs of the litigation. the respondent herein resisted the said petition contending that the appellant is not entitled to claim any interim maintenance, that she is earning rs. 2,000 per month, as a teacher in japan, that she has got other assets which can yield sufficient income, and that therefore, she is not entitled to be paid any interim maintenance.4. the court below rejected the appellant's claim for interim monthly maintenance, but directed the respondent to pay her a sum of rs. 200 towards litigation expenses. the appellant is aggrieved against the order of the lower court in so far as it has rejected her claim for interim maintenance.....
Judgment:
ORDER

1. This appeal is directed against the order of the lower court refusing to award interim maintenance claimed by the appellant at the rate of Rs. 200 per month.

2. The appellant and the respondent were married on 11-7-1973. The respondent herein filed a suit O. S. No. 1 of 1975 seeking divorce under S. 10 of the Indian Divorce Act 1869, on 9-4-1975, on the ground that the appellant had committed adultery with the second defendant in the suit. The appellant resisted the said suit on the ground that she had not committed adultery with the second defendant or any one else, but on the other hand, the plaintiff had driven her out and deserted her 2 or 3 months after the marriage. After filing the written filed a petition under S. 36 of the Indian Divorce Act, for directing the plaintiff husband to pay her alimony at Rs. 200 per month and also the cost of defence in the suit.

3. In the said petition she has alleged that as she has been deserted by her husband (plaintiff), that she is living with her elder brother in Japan, that she owns no property, and that, therefore, she has to be paid alimony to maintain herself during the pendency of the suit for divorce. She claimed that the respondent was working as a supervisor in Madurai Mills Ltd., and that having regard to his salary, he may be directed to pay a sum of Rs. 200 per month towards interim maintenance and Rs. 500 towards costs of the litigation. The respondent herein resisted the said petition contending that the appellant is not entitled to claim any interim maintenance, that she is earning Rs. 2,000 per month, as a teacher in Japan, that she has got other assets which can yield sufficient income, and that therefore, she is not entitled to be paid any interim maintenance.

4. The court below rejected the appellant's claim for interim monthly maintenance, but directed the respondent to pay her a sum of Rs. 200 towards litigation expenses. The appellant is aggrieved against the order of the lower court in so far as it has rejected her claim for interim maintenance pending disposal of the suit for divorce. The reason given by the lower court for rejecting the claim of the appellant for the monthly maintenance is that the appellant is not residing in India, that there is no like hood of her coming and living in India before the disposal of the suit, and that therefore no maintenance could be granted to her pending disposal of the suit. The learned counsel for the appellant contends that the fact the appellant is not residing in India is not a ground for depriving her of the interim maintenance which she is entitled to get under S. 36 of the Indian Divorce Act.

5. I am of the view that the learned counsel for the appellant is right in his submission that the ground of rejection of the appellant's claim for interim maintenance is not tenable. I do not think, the place of residence of the appellant is relevant for the purpose of deciding her entitlement for interim maintenance. If she is entitled to be paid interim maintenance, she can claim such maintenance irrespective of her place of residence. The fact that, for the time being, she is residing in Japan will not disentitle her from seeking interim maintenance. Therefore, the ground of rejection of the appellant's claim given by the court below cannot at all be sustained.

6. However, I find that the court below has not gone into the question as to whether the appellant has made out her case for maintenance. It is well established that the court has a wide discretion in the matter of granting alimony pendente lite, and that as a general rule, the court will consider it prudent to adhere to the principle that a marriage de facto carries the right to alimony pendente lite and will primary have regard to the means of the parties. In Kuriakose v. Kuriakose, AIR 1958 Mad 340, a Division Bench of this court though rejected the extreme contention that where the wife was shown to have property of her own, there should be no direction to the husband to pay her any amount either as alimony or as costs of the suit, however, recognised the position that possession of independent means of the wife would no doubt be a relevant factor in deciding whether any provision for interim maintenance or for costs of the litigation should be made. In Mary Therezz Parker v. George Doughlas Parker, AIR 1955 NUC(Mad) 3940, Ramaswasmi j., had expressed the view that the exact amount to be awarded under S. 36 as alimony pendente lite may vary according to the circumstances of the parties, namely, the rank and life of the husband and the number of children for whose support the husband may be ordered to pay, that the test should therefore be as to what would be an adequate provision for the wife of a man in the husband's position, that in granting temporary alimony, the Court should take into consideration the earnings of the wife also and that if she has been able to support herself by her own earrings as well as the properties owned by her, she will not be entitled to any alimony pendente lite.

7. Having regard to the principle set out above, the court below has to consider whether the petitioner-appellant has made out a case for interim maintenance and if, in its opinion, the appellant is entitled to interim maintenance, it has to fix the quantum of interim maintenance having regard to the properties, moveable and immoveable, owned by the appellant and also her earnings. The appellant has averred in her petition that she has no property and no income, and that she is being maintained by her elder brother in Japan. But the respondent-husband has averred in his counter-affidavit that the appellant is earning a sum of Rs. 2,000 per month as a teacher in Japan, that she has inherited a sum of Rs. 6,000, and odd which her mother has deposited in the State Bank of Madurai after the latter's death, that she has got a sum of Rs. 4,000 as provident fund at the time of relinquishing her post as teacher in Madurai, before leaving for Japan, and that she has also got 52 sovereigns of gold ornaments apart from being in possession of a sum of Rs. 151 in her own name in the State Bank. The court has not given any finding as to the worth and the earnings of the appellant. The lower court will, therefore, have to consider the claim of the appellant for interim maintenance having regard to all the relevant circumstances pointed out above including the earnings of the appellant.

8. The appeal is, therefore, allowed in part, and the matter is remitted to the lower court for fresh consideration on the question of interim maintenance. The parties are given liberty to adduce oral evidence, if necessary, in respect of their respective averments. The order of the lower court, in so far as it fixes a sum of Rs. 200 as litigation expenses will however stand. No costs.

9. Appeal partly allowed.


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