IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 257 of 2005()
1. SOORYAKUMAR, S/O.THANDAYAMPARAMBIL
... Petitioner
Vs
1. SINDHU, D/O.KOSERI PADMANABHAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH
For Respondent :SRI.K.PADMANABHAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :21/01/2009
O R D E R
P.R. RAMAN & C.T. RAVIKUMAR, JJ.
= = = = = = = = = = = = = = = = = = = =
MAT. APPEAL NO. 257 OF 2005
= = = = = = = = = = = = = = = = = =
DATED THIS, THE 21ST DAY OF JANUARY, 2009.
J U D G M E N T
Raman, J.
This is an appeal arising out of the order passed by the Family Court,
Thrissur, rendered in O.P. 269/1999, on 18.4.2005. Husband is the
appellant.
2. O.P. 269/1999 was filed under Section 18 of the Hindu Adoption
and Maintenance Act by the wife. Her case was that the marriage between
herself and the respondent was solemnised on 8.4.1995, that her gold
ornaments weighing 100 sovereigns and Rs. 2 lakhs are with the husband
and his relatives, that they lived together only for a few months, that the
torture of the respondent was unendurable, that the respondent is a
dipsomaniac and spendthrift, that he misappropriated her gold ornaments,
that he demanded a further amount of Rs. 16 lakhs from her home and on
5.7.1995 she was taken to her own home and deserted her without
maintaining her. According to the wife, the husband is having business and
income from scheduled properties to the tune of Rs. 10,000/- per month.
MAT.A. 257/2005 :2:
The divorce petition O.P. 615/1996 filed by her is still pending and she has
no source of income and therefore, demanded monthly maintenance at the
rate of Rs.2,500/- from 5.7.1995 with a charge over the scheduled
properties.
3. The husband resisted the claim. The evidence in the case consists
of the oral testimony testimony of P.W.1 and R.W.1. On the petitioner’s
side Ext.A1 was marked and Exts.B1 to B7 were marked on the side of the
respondent.
4. The relationship between the parties as husband and wife is
beyond dispute. By the time the final order was passed, there was already
a decree for divorce granted by the Family Court which was confirmed in
appeal – M.F.A. 485/2001 which fact was noticed by the Family court in
para 6 of the impugned order. Thus, the matrimonial tie between the parties
has broken and their relationship no longer exists. The divorce decree
passed was confirmed by this Court against which S.L.P. 9707/2002 was
preferred before the Apex Court which was also dismissed. Thus there is a
finality to the divorce decree. However, the court below, by the order
impugned in this appeal, ordered maintenance at the rate of Rs.1,000/-. A
legal contention is raised by the appellant that after the divorce decree there
MAT.A. 257/2005 :3:
cannot be any order for payment of maintenance under Section 18 of the
Hindu Adoption and Maintenance Act.
5. There is force in this contention. As per Section 18 of the Hindu
Adoption and Maintenance Act, 1956, a Hindu wife, whether married before
or after the commencement of the said Act shall be entitled to be maintained
by her husband during her life time and she will be entitled to live
separately from her husband without forfeiting her claim to maintenance on
the circumstances mentioned under Section 18(2) of the Act. Therefore,
maintenance under Section 18 of the Act can be awarded during the
subsistence of the relationship between the parties. Now that there is a
divorce decree passed and confirmed in appeal and has become final, the
relationship as husband and wife no longer subsists. Therefore, the order
passed by the Family court shall be operative till the divorce decree became
final ie. the date on which the statutory appeal was dismissed by this Court
(7.3.2002) and thereafter, the dismissal of the Special Leave Petition by the
Apex Court on 8.7.2002. Since the Special Leave petition was dismissed at
the admission stage, even without admitting the same, we take 7.3.2002 as
the date on which the decree become final.
MAT.A. 257/2005 :4:
6. Accordingly, the appeal is allowed partly and we uphold the order
of maintenance passed in in this case which will be operative till, 7.3.2002.
P.R. RAMAN, JUDGE.
C.T. RAVIKUMAR, JUDGE.
KNC/-