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1982 Supreme(Ker) 62

Judges : SUKUMARAN
RADHAKUMARI - Appellant
Versus
K.M.K NAIR - Respondent
Case No : C.R.P. No. 3834 of 1981-D
Decided On : 03/05/1982
Advocates Appeared :
N. Nandakumara Menon; For Petitioner K.S. Rajamony; A. Shahul Hameed; For Respondents

Headnote:

Home - Alimony and Expenses - S.13(1 A), S.24 of the Hindu Marriage Act - 18-4-1980, 13-7-1980, 5-6-1981, 24-8-1981, 12-10-1981, 13-10-1981, 21-10-1981 - The court discussed the provisions of S.13(1 A) and S.24 of the Hindu Marriage Act and their application in the case. It highlighted the husband's obligation to maintain the wife and children and the court's authority to compel the husband to fulfill this duty. The court also emphasized the need for a human approach in dealing with matrimonial disputes and the establishment of family courts to adopt conciliatory methods and informal procedures for socially desirable results.

Fact of the Case:

The wife filed a revision petition seeking alimony and expenses pending decision in a divorce petition after the court below dismissed her application. The husband had sought restitution of conjugal rights, which was granted, but the wife did not comply. The husband then filed a divorce petition, and the wife filed an objection. The wife subsequently filed a petition for alimony and expenses, which was dismissed by the court below.

Finding of the Court:

The court found that the husband had the means to pay alimony and expenses and that the wife and children were entitled to receive it. It also criticized the court below for abdicating its function in dealing with the petition under S.24 of the Hindu Marriage Act.

Issues: The issues involved the wife's entitlement to alimony and expenses pending the decision in the divorce petition, the husband's obligation to maintain the wife and children, and the court's approach in dealing with matrimonial disputes.

Ratio Decidendi: The court emphasized the need for a human approach in dealing with matrimonial disputes and the establishment of family courts to adopt conciliatory methods and informal procedures for socially desirable results. It also highlighted the husband's obligation to maintain the wife and children and the court's authority to compel the husband to fulfill this duty.

Final Decision: The court set aside the order of the court below and directed the husband to pay a sum of Rs. 600/- per month to the wife and children by way of alimony and expenses, effective from the date of service of summons of the main petition for divorce on the wife.

Judgment :-

1. Home, sweet home, is a cherished concept of all. Thoughts centre round the borne where the wife and children stay, even when one is away. It is in that sense that Lord Denning conceived of home, when he observed: "The man'occupies' the home by bis wife and family even whilst he is overseas". (See R. v. LB of Hillingdon, 1981 (2) All E. R.1089 (1092)).

2. A broken home, however, is a traumatic experience. To many, merely being under the same roof, without emotional attachment and the connection of affection, is a mere vegetative existence. Quite often, a deserted wife gets reconciled to think, (unnecessarily and unscientifically perhaps): 'what is fated cannot be blotted'; and counts the days with sorrows' crown of sorrow The plight of the children, however, appears to be more tragic. As Lane J. observed in L v. F (Times dated 1-8-1981) and quoted W. v. A., 1981 (1) All E. R.100 at 104: "a marriage could be dissolved but not parenthood". The decision in W. v. A. (supra) refers (at page 105) to the evidence given by a very distinguished child psychiatrist 'that when they grow older, children were often greatly concerned with their biological origin'. George Eliot in "The Mill on the Floss" referred to "these bitter sorrows of childhood when sorrow is all new and strange, when hope has not yet got wings to fly beyond the days and the weeks, and the space from summer to summer seems measureless". Law feels almost helpless, uninitiated as it is in the art of caring and curing, in that sensitive area. Law can do little for the reparation of the weeping wounds in the emotional capillaries. Sufferings exist not only in the emotional sphere. Pecuniary disability adds to the agony of a discarded spouse or neglected child. In that sphere, however, the court of law is not completely helpless. He (or she), who has the means and who under law is obliged to protect or maintain another of the family, can be compelled, if necessary, by the strong arm of law, to do the duty. This revision petition seeks relief in that regard.

3. An application by a wife on her own behalf and on behalf of her two children, for alimony and expenses pending decision in a divorce petition did not succeed in the court below. She has approached this Court for correction in revision, of that order, which according to her, amounted to an abdication of jurisdiction vested in the court below, for reasons unsustainable.

4. The revision petitioner herein, Radha Kumari, was married happily a decade and half before, on 19-5-1967 in the sanctified atmosphere of the Shanghumugham temple at Trivandrum. (I shall refer to her in this judgment as'the wife'; she still, is.) Two children Binoj and Rishma were born out of the wedlock. The husband belongs to the medical profession and is an Assistant surgeon in Government service! Nearly after a decade of married life, unfortunate differences of opinion appear to have simmered. The records of the case received pursuant to the requisition from this Court reveal a tragic story. It is, however, not necessary, and perhaps not desirable, to refer to them in detail, for the purpose of deciding the limited question arising in this revision petition. Even a narration of the events as disclosed from the records may, perhaps unwittingly, appear to be tendentious. It is farthest from the intention of this Court, to lead the dice either way. A brief statement of the bare facts is therefore attempted, for the limited purpose of deciding the point raised in the revision petition.

5. O.P. (H.M.A.) 278/79 was filed by the husband seeking restitution of conjugal rights. It was alleged that consequent on bis transfer on 18-5-1979, he had entered on leave for 120 days with a view to shift to the new station at Chathanoor, and that despite a request in that behalf the wife refused to stay with him.

6. The wife demurred. According to her she had been always willing to stay with her husband, but had apprehension to go with him to a far off place.

























































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