IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :07-10-2010
CORAM
THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH
CRP.NPD.No.3284 of 2010
and
M.P.No.1 of 2010
M.S. Khader Basha .. Revision petitioner
Vs.
F. Ayisha Husnara .. Respondent
Prayer :-This revision has been filed under Article 227 of the Constitution of India against the order dated 22.06.2010 passed in I.A. 3222 of 2009 in O.S. No.161 of 2007 on the file of I Additional Family Judge, Chennai.
For Petitioner : Ms.S. Vidhya
For Respondent : Mrs. Sudharshana Sundar
ORDER
This revision has been filed by the petitioner against the order dated 22.06.2010 passed in I.A. 3222 of 2009 in O.S. No.161 of 2007 by the lower court an application for grant of interim maintenance at Rs.10,000/- per month.
2. Heard Ms. S. Vidhya, learned counsel for the petitioner and Mrs. Sudharshana Sundar, learned counsel for the respondent.
3. Learned counsel for the petitioner would submit in her argument that the lower court has not promptly exercised its jurisdiction in ordering interim maintenance. She would further submit that the petitioner was affluent and she is able to maintain herself and therefore, she is not entitled to get an order of interim maintenance in her favour. She would further submit that the lower court had without any evidence had come to the conclusion that the petitioner would earn a sum of Rs.25,000/- to Rs.30,000/- per month but the petitioner is not doing any business to earn any profits. She would further submit that the petitioner is only an employee and he is drawing a sum of Rs.5000/- per month. She would further submit in her argument that there is no basis for awarding a sum of Rs.10,000/- per month and even the said amount is excessive and beyond the ability of the petitioner. She would further submit that the order passed by the lower court is perverse and the same could be seen from the perusal of the entire order and therefore, it has to be interfered and set aside and thus revision be allowed.
4. Learned counsel for the respondent would submit in her argument that the petitioner is having extensive properties and business also and the respondent/plaintiff was living with the petitioner in a comfortable manner and it is utter falsehood to say that he is earning only a sum of Rs.5000/- as a workmen. She would further submit that the ground raised in (f) is not in good taste and it would reflect the attitude of the petitioner. She would further submit in her argument that the petitioner had admitted in the written statement filed before the lower court that he required children for inheriting the business as well as the properties that he had and the said plea itself would show that he had got extensive properties and business. She would also submit that the petitioner did not adduce any evidence on his side to deny the allegations made in the affidavit. She would also submit that the suit has been filed by the respondent as plaintiff seeking for a declaratory relief of the 'talak' pronounced by the petitioner as null and void and to have a reunion and also for permanent injunction against the petitioner not to remarry any other women. If for any reason the petitioner is not fastened with a liability of interim maintenance who is able to pay the said sum, the respondent wife will be put in jeopardy and would be left without any money for her maintenance in future. Therefore, she would request the court to dismiss the revision petition and to pass suitable directions for payment of maintenance.
5. I have given anxious thoughts to the arguments advanced on either side.
6. The admitted facts are that the petitioner and respondent were married as per the Islamic law and the petitioner as a husband has subsequently pronounced talak against the respondent and the respondent has come forward with the suit that the said pronounciation of talak was not in accordance with law and so she sought for declaration that the said 'talak' is null and void and the marriage is subsisting and also for consequential reliefs. The said suit has to enter trial, since the written statement has already been filed on the side of the petitioner. In the meantime the application has been filed by the respondent seeking for an interim maintenance at Rs.40,000/- per month from the date of filing of the suit till the date of disposal under the provisions of Protection of women from Domestic Violence Act 2005.
7. The only point to be seen is whether the quantum ordered by the lower court is excessive. Indisputably, the petitioner as husband is liable to pay maintenance since the respondent wife has not remarried. It is the dictum of this court as discussed by the lower court that the divorce Muslim women are entitled to maintenance from their respective husbands not only during the period of Iddat but also during the subsequent period until she is remarried. Therefore, there is no second opinion that the respondent as wife is not entitled to any maintenance from her husband. It is also not disputed by the petitioner that the respondent is an earning member and her earnings would be sufficient for maintaining herself. Therefore, the liability of payment of maintenance is unassailable. The only question before this court is what would be the quantum of maintenance payable to the respondent by the petitioner. According to the submission made by the learned counsel for the petitioner that the petitioner husband as a workman is earning a sum of Rs.5000/- only, per month. It is further contended that the respondent has not proved the existence of any properties and the business of the husband as alleged in her affidavit. Similarly it has also been contended that the allegation regarding the income to the tune of Rs.1 crore per month has also not been established. However, it has been refuted by the respondent counsel that it has been categorically admitted by the petitioner himself in the written statement in para 9 that the defendant/petitioner wants to have children and heir to his properties and business.
8. It is true that the defendant had admitted in the written statement that he has got properties and business. When such admission has been shown to the court it is for the petitioner to show to court that he has got minimal income from the properties as well as from business and not at the rate of Rs.1 crore per month as put forth in the affidavit of the respondent. The petitioner did not enter into the witness box to distinguish the admission and to disprove the allegation made by the respondent. In the aforesaid circumstances, there is no other options except presuming the income of the petitioner at Rs.25,000/- to Rs.40,000/- per month. It is not a fabulous income derived by one person who is having business and properties in Madras city. Therefore, the conclusion of the lower court that the petitioner would be deriving an income of Rs.40,000/- could be sustainable.
8. In these circumstances, the payment of maintenance at the rate of Rs.10,000/- per month to the respondent is also sustainable. Therefore, there is no reason for this court to interfere with the order passed by the lower court to which the respondent is entitled as per the provisions of law. However, the lower court has not fixed any time limit for the payment of maintenance upto date. Therefore, it has become necessary for this court to direct the petitioner to deposit the said arrears of amount upto date into the court within a period of 15 days from the date of receipt of the copy of this corder. In default to pay such amount it is for the lower court to proceed further in accordance with law.
9. With the aforesaid observation, the revision petition is dismissed without costs. Connected miscellaneous petition is closed.
kpr
To,
The I Additional Family Judge
Chennai
