Dismissed

T.P.Sudheesh Babu v. Sherly.P.

Kerala HC22 Oct 2009WP(C)/26482/2009

Case brief

AI extract

What is this about?

This writ petition challenged interim maintenance and litigation expenses awarded under Section 24 of the Hindu Marriage Act during nullity proceedings under Section 12. The court held that Section 24 applies to any proceeding under the Act and dismissed the writ, finding the award reasonable and fair.

What did the court decide?

The writ petition was dismissed; the amount deposited shall be released to the respondent.

T.P.Sudheesh Babu Vs Sherly.P. — Maintenance and Alimony | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI

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THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931

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WP(C).No. 26482 of 2009(R)

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-------------------------OP.148/2006 of FAMILY COURT, KANNUR ....................

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PETITIONER(S):

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T.P.SUDHEESH BABU,S/O.P.K.RAGHAVAN, THAZHAPADINHARAYIL HOUSE,KADAMBOOR P.O., KANNUR DISTRICT,THROUGH POWR OF ATTORNEY HOLDER-T.P.ANIL KUMAR,RESIDING AT -DO-

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BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K.

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RESPONDENT(S):

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SHERLY P.,D/O.NARAYANAN, PUTHUSSERI HOUSE,KEEZHUTHALLY, P.O.THOTTADA,KANNUR.

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ADV. SRI.GRASHIOUS KURIAKOSE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R. BASANT & M.C. HARI RANI, JJ.

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W.P.(C) No. 26482 of 2009-R

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Dated this the 22^nd day of October, 2009

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JUDGMENT

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Basant,J.

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Are the provisions of Sec.24 of the Hindu Marriage Act, 1955 applicable when the proceedings before the Family Court is under Sec.12 of the Hindu Marriage Act for declaration of nullity of marriage? This is the short question of law which is canvassed before us.

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The vital facts first. The marriage between the petitioner and the respondent was solemnised on 13/5/05. The spouses lived together for some time; but thereafter started separate residence. The petitioner filed O.P.No.148/06 under Sec.12 of the Hindu Marriage Act for a declaration that his marriage with the respondent is null and void. During the pendency of that petition, the respondent filed I.A.No.628/06

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W.P.(C) No. 26482 of 2009-R

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under Sec.24 of the Hindu Marriage Act claiming monthly maintenance at the rate of Rs.5,000/- and litigation expenses of Rs.10,000/-.

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The said application was resisted. The learned Judge of the Family Court by Ext.P3 order directed the petitioner to pay an amount of Rs.2,000/- per mensem as interim maintenance and to pay an amount of Rs.3,500/- as litigation expenses. That order was not promptly challenged; but was sought to be reviewed by filing I.A.No.956/07. The learned Judge by Ext.P4 order turned down the prayer for review of Ext.P3 order.

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In the writ petition the petitioner assails Exts.P3 and P4 orders. What is the ground? The learned counsel for the petitioner advances two grounds before us. First of all, the learned counsel contends that Sec.24 of the Hindu Marriage Act can have no application whatsoever when the proceedings are pending under Sec.12 of the Hindu Marriage Act for declaration of nullity. Secondly, it is contended that the quantum of monthly maintenance and litigation expenses awarded is excessive.

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Called upon to explain the contention that Sec.24 of the Hindu Marriage Act has no application, the learned counsel argues that this is a case where the very validity of the marriage is questioned and, in these circumstances, Sec.24 can have no

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W.P.(C) No. 26482 of 2009-R

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application.

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We are unable to agree with this contention. The plain language of Sec.24 of the Hindu Marriage Act which we extract below clearly shows that the powers under Sec.24 can be invoked when “any proceeding” is pending before the court:

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“ 24. Maintenance pendente lite and expenses of proceedings.-- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable:

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Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date

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of service of notice on the wife or the husband, as the case may be.”

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(emphasis supplied)

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It is very evident that Sec.24 applies when any proceeding under the Act is pending and no exception can be carved out for proceedings under Sec.12 of the Hindu Marriage Act.

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It is true that Sec.24 employs the expressions “wife” and “husband”. The mere fact that a marriage already solemnised is sought to be avoided by declaration of nullity under Sec.12 cannot militate against the status of the spouses as husband and wife until such a declaration of nullity is granted.

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Solemnisation of marriage is admitted. The status of the husband and wife for the purpose of Sec.24 has been achieved by the spouses by such solemnisation. The mere fact that the said relationship is sought to be annulled by initiation of the proceedings under Sec.12 of the Hindu Marriage Act cannot justify a contention that the respondent herein is not a “wife” to whom alone Sec.24 can apply. The objection raised on both grounds - that Sec.24 is not applicable to the proceedings under

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Sec.12 and that the petitioner cannot be said to be a husband coming within the sweep of that expression in Sec.24 of the Hindu Marriage Act, cannot be accepted.

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It is next contended that the quantum of monthly maintenance and litigation expenses awarded is excessive. The evidence clearly indicates that the petitioner is employed abroad. He does not dispute the fact that he was employed abroad; but according to him, the agony resulting from the controversial marriage has led to his loss of employment. According to him, he has now lost his employment. Surprisingly, he does not deny the fact that he continues to be residing abroad and that is evident from the prosecution of the petition by the Power-ofAttorney holder of the petitioner in his absence. In any view of the matter, we are satisfied that the quantum of monthly maintenance pendente lite awarded at the rate of Rs.2,000/- for the wife of the petitioner, admittedly a person employed abroad is not excessive or unreasonable. His theory about the loss of employment and continuance aboard as an unemployed person, cannot be swallowed by a prudent person. The litigation expenses awarded is most modest and frugal.

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The above discussions lead us to the conclusion that the impugned order does not warrant any interference. The

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same is found to be legal, reasonable, fair and just. At any rate, the extraordinary constitutional jurisdiction under Art.227 of the Constitution does not deserve to be invoked.

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In the result, this writ petition is dismissed. The amount, if any, deposited as per the order dated 26/11/07 shall forthwith be released to the respondent.

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Sd/R. BASANT (Judge)

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Sd/-

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M.C. HARI RANI (Judge)

Nan/

//True Copy//

P.S. to Judge

W.P.(C) No. 26482 of 2009-R

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T.P.Sudheesh Babu v. Sherly.P.

Case brief

What is this about?

What did the court decide?

T.P.Sudheesh Babu v. Sherly.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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