CMA(MD)No.887 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED :05.10.2021

CORAM:

THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN

and

THE HONOURABLE MR.JUSTICE R. PONGIAPPAN

C.M.A(MD) No.887 of 2021

and C.M.P(MD)No.8362 of 2021

R.Manimozhi ... Appellant/Respondent/Petitioner

-vs-

J.Jeya

... Respondent/Petitioner/Respondent

PRAYER : Civil Miscellaenous Appeal is filed under Section 19 of the

Family Courts Act against the fair and decreetal order passed by the

Family Judge, Ramanathapuram in I.A.No.91 of 2020 in H.M.O.P.No.116

of 2019 dated 11.11.2020.

For Appellant :Mr.K.Navaneetharaja

J U D G M E N T

(Judgement of the Court was made by V. BHARATHIDASAN, J.)

This Civil Miscellaneous Appeal is filed against the order

passed by the learned Judge, Family Court, Ramanathapuram in

I.A.No.91 of 2020 in H.M.O.P.No.116 of 2019 dated 11.11.2020.

2. The appellant herein is the husband, who has filed

H.M.O.P.No.116 of 2019, under Section 9 of the Hindu Marriage Act,

seeking restitution of conjugal rights. Pending the above

application, the respondent herein/wife has filed I.A.No.91 of 2020

under Sections 24 and 26 of the Hindu Marriage Act seeking interim

alimony of Rs.40,000/- to maintain her and minor child and

Rs.25,000/- towards legal expenses. The trial court, after

considering the materials on record, ordered the appellant to pay

Rs.15,000/- per month towards interim maintenance for the wife and

minor child. Challenging the above order, the present appeal has

been filed.

3. Mr.K.Navaneetha Raja, learned counsel appearing for the

appellant would vehemently contend that, the petition seeking

restitution of conjugal rights has been filed by the

appellant/husband, as the respondent/wife is voluntarily deserted

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CMA(MD)No.887 of 2021

and living separately. According to the appellant, despite his best

efforts, she is not willing to return to the matrimonial home to

live with the appellant, therefore, the respondent/wife is not

entitled for maintenance. It is his further submission that even

though the appellant is working as Teacher, he is maintaining a big

family and he is taking care of the medical expenses of his aged

parents and therefore, he is not in a position to pay

Rs.15,000/- per month, which is very excessive. He would also submit

without considering all the aspects, the Family Court has ordered

maintenance and therefore, the same may be set aside.

4. We have heard the submissions made by the learned counsel

for the appellant and perused the materials available on record.

5. The petition filed by the appellant for restitution of

conjugal rights is pending and the respondent/wife is also

contesting the above petition on various grounds. It is admitted

fact that the wife is living along with the minor child. It is also

stated that she is having no means to maintan herself and the child.

The appellant is working as Teacher and getting monthly salary of

Rs.52,000/-. The issue whether the respondent/wife deserted the

husband or not is to be decided based on the evidence after trial,

merely because the appellant filed the petition seeking restitution

of conjugal rights, it will not debar the respondent/wife seeking

for maintainence.

6. Considering the above facts, we are of the considered view

that the learned Judge, Family Court, Ramanathapuram has rightly

ordered Rs.15,000/- per month towards maintenance and it cannot be

considered as excessive and we find no merit in this appeal.

However, considering the fact that H.M.O.P is of the year 2019, we

direct the learned Judge, Family Court, Ramanathapuram, to dispose

of H.M.O.P.No.116 of 2019 on merits and in accordance with law, as

expeditiously as possible, prefrerably, within a period of three

months from the date of receipt of a copy of this order.

7.