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I.Amudhavally vs P.Vissouvanadane on 20 January, 2009

Madras High Court
I.Amudhavally vs P.Vissouvanadane on 20 January, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:20..01.2009

Coram:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.PD.No.2814 of 2008
and
M.P.No.1 of 2008

I.Amudhavally 						..  Petitioner 

vs.

P.Vissouvanadane					..  Respondent
	The civil revision petition is filed as against the order dated 26.6.2008 passed in I.A.No.1241 of 2007 in M.O.P.No.127 of 2007, by the Family Judge, Pondicherry.

		For Petitioner       : Mr.R.Subramanian
		For Respondent	   : Mr.P.V.Rajeswari
		
ORDER

Anim-adverting upon the order order dated 26.6.2008 passed in I.A.No.1241 of 2007 in M.O.P.No.127 of 2007, by the Family Judge, Pondicherry, this revision petition is filed.

2. The facts giving rise to the filing of this revision petition, as stood exposited from the averments in the revision petition, would run thus:

The respondent herein, who is the husband of the petitioner filed MOP.NO.127 of 2007 seeking divorce. During the pendency of the O.P., I.A.NO.1241 of 2007 was filed by the wife as against the husband, seeking maintenance for herself and for the minor child, aged about two years. The Family Court, vide its order dated 26.6.2008 awarded maintenance of Rs.500/-per month payable by the respondent herein to the child and the claim of the wife was negatived. Being aggrieved by and dis-satisfied with the said order, this revision has been focussed on various grounds.

3. The learned counsel for the petitioner/wife would develop his argument to the effect that the lower Court awarded only a meagre sum of Rs.500/-per month as maintenance; in the present day cost of living, a child cannot be brought up with that meagre sum of Rs.500/-, the petitioner/wife even as per the certificate produced by her, is earning only a sum of Rs.100/- per day and in such a case it cannot be stated that she has got sufficient income to maintain herself. Accordingly, the learned counsel for the revision petitioner prays for enhancement of maintenance for the child and for awarding maintenance in favour of the petitioner/wife.

4. Whereas, the learned counsel for the respondent/husband would put forth her argument to the effect that the petitioner/wife in this case is not at all entitled to maintenance, as she resigned her job in the Pondicherry Institute of Medical Sciences for the purpose of getting higher salary in PONLAIT(a Pondicherry Government undertaking); the wife is not at all entitled to claim maintenance, as she is voluntarily living separately from her husband; the wife also is guilty of uttering out falsehood before the lower Court, as she had at one point of time stated that she was jobless and subsequently she came forward with the plea that she was earning a sum of Rs.100/- per day; the husband is not working now and earning, even though he is a Post Graduate in Tourism and Human Resources Management; as such, the maintenance awarded in favour of the child need not be enhanced and no maintenance need be awarded in favour of the wife.

5. Indubitably and incontrovertibly, the relationship between the revision petitioner herein and the respondent is an admitted one. No doubt on the plea of cruelty, the husband seeks divorce. At this juncture, it has to be seen as to whether at the time of awarding interim maintenance, a finding is required to be given to who was at fault. The fault theory is having no place at all while the Court adjudging the entitlement for maintenance. The Court has to see whether the claimant is having sufficient means to maintain herself or not. Incontrovertibly and unassailably, the wife, as per her own version, is earning a sum of Rs.100/- per day. The core question arises as to whether based on such fact alone her claim for maintenance could be rejected.

6. It is a trite proposition of law that simply because the wife is earning, her claim cannot be rejected inlimini. It has to be found out as to whether the amount which she is earning is sufficient to meet her creature comforts; to keep her body soul together; to keep the wolf from the door and to keep the pot boiling. It is a common or garden principle under the Matrimonial Law that a wife is entitled to live in commensurate with the status of her husband.

7. The learned counsel for the husband would submit that the financial status of the husband, at present, is nil for the reason that he is not earning at all and in such a case, the admitted financial status of the wife is far better than that of the husband and in such a case, the wife is not entitled to any compensation.

8. What I could understand from the records as well as the submissions made on either side is that the husband was previously working and earning, as he is a P.G.graduate in Tourism and Human Resources Management. It is also a well settled proposition that a husband, who is hale and healthy and having the capacity and ability to earn, would not be heard to plead that at present he is jobless and that he would not be able to pay maintenance. It is therefore pellucidly and palpably clear that the husband in this case is having the potentiality to earn and maintain his wife and the child and his status is that of a P.G.graduate in Tourism and Human Resources Management. Whereas, the wife is earning only a sum of Rs.100/- per day. It is also pertinent to note that the husband has not produced any evidence much less clinching evidence relating to his financial status before he allegedly resigned his post. In such a case it could easily be understood that he might have earned not less than Rs.5000/- per month. Now a days even an unskilled worker is earning Rs.5000/- and this Court can take judicial notice of the same. In such a case the husband could be directed to pay at least Rs.500/- per month (five hundred only) to his wife towards interim maintenance, as she is already earning a sum of Rs.100/- per day and by no stretch of imagination such awarding of Rs.500/- could be termed as excessive.

9. The lower Court, without any rhyme or reason, simply awarded a sum of Rs.500/-p.m. (five hundred only) to the child of two years old. It is quite ad impossiblia, on the part of the mother to bring up a child with a sum of Rs.500/-per month in the present day cost of living. At least the child should have a sum of Rs.50/- per day to be brought up properly by the mother and it comes to Rs.1500/- per month. In totality, the liability of the husband to pay interim maintenance comes to Rs.2000/- per month only, which, in my opinion, the husband could bear very easily.

10. In the result, the order of the lower Court is modified as under:

The respondent-the husband is directed to pay a sum of Rs.500/-((Rupees five hundred only) per month to the wife and a sum of Rs.1500/-(Rupees one thousand five hundred only) per month to the child, till the disposal of the M.O.P.

11. The learned counsel for the respondent/husband would make an extempore submission to the effect that at present, the husband is jobless and if this Court’s order is implemented from the date of the I.A., it would mulct him heavily and he would not be able to comply with the order.

12. In view of the singularly singular situation highlighted by the learned counsel for the respondent/husband, I would direct that the maintenance awarded for the wife would take effect from the date of this order. Regarding the enhanced maintenance awarded to the child, the same shall take effect from the date of filing of the I.A.1241 of 2007 before the Family Court, Pondicherry.

13. The learned counsel for the respondent/husband also prays for early disposal of the matter. It goes without indicating and mandating that matrimonial matters shall be disposed of as early as possible and the Family Court is directed to dispose of the matter within three months from the date of receipt of copy of this order and report compliance to this Court.

14. The civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.

Msk

To

The Family Judge,
Pondicherry

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