The non-payment of maintenance is a ground to stay the divorce proceedings filed by the husband before the Family Court.

C.R.P.No.2468 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.01.2023

CORAM

THE HON'BLE Mr. JUSTICE S.M.SUBRAMANIAM

C.R.P.No.2468 of 2022

and

C.M.P.No.12751 of 2022

1.Pavithra

2.Minor. Sanjai

3.Minor. Dhivishwarn

... Petitioners

Vs.

Saravanan

... Respondent

Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution

of India, to set aside the fair and final order dated 08.07.2022 made in FCIA

No.9 of 2022, in FCOP No.103 of 2019, on the file of the learned Family

Court at Chengalpattu.

For Petitioners

: Mr.D.R.Arun Kumar

For Respondent

: Mr.R.Sreedhar

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C.R.P.No.2468 of 2022

ORDER

The civil revision petition is filed against the fair and final order

dated 08.07.2022 passed in F.C.I.A. No.9 of 2022 in F.C.O.P. No.103 of

2019. The revision petitioner is the respondent in F.C.O.P. and the

respondent filed F.C.O.P. for dissolution of marriage.

2. During the pendency of the divorce case, the revision petitioners

filed a petition for maintenance which was allowed by the Family Court.

Since the revision petitioner/husband failed to pay the maintenance amount

punctually, the petitioners were not in a position to contest the divorce

petition effectively and thus, filed F.C.I.A. No. 9 of 2022 to stay the divorce

proceedings, till such time, the maintenance amount is settled to the

petitioners.

3. The learned counsel for the revision petitioner states that she is

unemployed and she has to take care of two minor children thus, she is not

in a position to spend and contest the divorce petition filed by the

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C.R.P.No.2468 of 2022

respondent/husband. The Trial Court dismissed the Interlocutory Application

on the ground that the maintenance petition is no way connected with the

divorce petition and therefore, the Interlocutory Application to stay the

proceedings is not maintainable. Thus, the petitioner is constrained to move

the present revision petition.

4. A practical and pragmatic approach is required in such

circumstances. Court cannot decide such petitions based on hypertechnical

grounds. In the present case, the respondent/husband filed a petition for

divorce. The petitioner/wife is unemployed and has to maintain two minor

children with the help of her parents. The Court already passed an order

granting maintenance. The respondent is insisting the Court to dispose of

the divorce petition and is committing default in payment of maintenance.

Such circumstances ought to be considered by the Courts in a practical

manner so as to ensure and allow the petitioner/wife to contest the matter

effectively.

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C.R.P.No.2468 of 2022

5. An unemployed wife may not be in a position to spend and

contest the divorce petition filed by the respondent who is gainfully

employed and is in an advantageous position. Thus, the nonpayment of

maintenance has got certain implications in respect of conducting the

matrimonial proceedings before the Court of law. The petitioner has to take

care of two minor children also. Thus, the non-payment of maintenance is a

ground to stay the divorce petition filed by the husband before the Family

Court. The Court cannot compel the wife to complete the divorce

proceedings when the husband is not paying the maintenance amount

punctually as per the orders of the Court.

6. Maintenance is a livelihood and no person can be deprived of it.

Once the maintenance is ordered by the Court, then the Court must ensure

that the said amount has been paid punctually by the husband. In the event

of default in payment of maintenance amount, the same must be ground to

stay the divorce proceedings, till such time the maintenance amount is paid

to the wife for the purpose of contesting the matter effectively. The wife

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C.R.P.N