Allowed¶40

Gausalya v. Hemanand

Madras HC28 Jan 2025CMA/3566/2019

Case brief

AI extract

What is this about?

Non-payment of interim maintenance Rs.25,000/- per month ordered in I.A.No.43 of 2015; husband failed to prove payment of maintenance during pendency of divorce proceedings; divorce decree of Family Court, Salem set aside on ground of non-payment of maintenance; defence of defaulting respondent liable to be struck off per Supreme Court guidelines; Section 19 Family Courts Act 1984 appeal; C.M.A. Salem; Kaushalya v. Mukesh Jain (2020) 17 SCC 822; Rajnesh v. Neha AIR 2021 SC 569; maintenance arrears; dissolution of marriage set aside; Madras High Court division bench.

What did the court decide?

Civil Miscellaneous Appeal allowed; order dated 01.03.2017 passed in F.C.O.P.No.471 of 2013 by the Family Court, Salem set aside; no costs; connected miscellaneous petition (C.M.P.No.20719 of 2019) closed. ¶40

Gausalya Vs Hemanand — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the order dated 01.03.2017 passed in F.C.O.P.No.471 of 2013 by the Family Court, Salem (granting divorce to the respondent/husband) should be upheld, given the appellant/wife's position that the maintenance directed under I.A.No.43 of 2015 was not paid. +1 more

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Court's answer

Since the respondent/husband has not paid the maintenance amount to the appellant/wife till date as directed by the Family Court, this Court has no other option except to set aside the order of the Family Court on the ground of non-payment of maintenance amount.

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Ratio / Principle

The respondent/husband has not adduced any proof in respect of payment of maintenance to the appellant/wife, and therefore it cannot be inferred that he had paid maintenance during pendency of the divorce proceedings.

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Detailed headnote1 paragraphs

Madras High Court (J.Nisha Banu and R.Sakthivel, JJ.) allowed C.M.A.No.3566 of 2019 filed under Section 19 of the Family Courts Act, 1984 by the wife (Gausalya) against the order dated 01.03.2017 in F.C.O.P.No.471 of 2013 of the Family Court, Salem, by which the husband's (Hemanand) petition for divorce had been allowed and the marriage dissolved. An interim order dated 28.09.2016 in I.A.No.43 of 2015 had directed the husband to pay maintenance of Rs.25,000/- per month to the wife; the husband adduced no proof of any such payment, and the Court found the maintenance amount unpaid till date. Relying on Kaushalya v. Mukesh Jain, (2020) 17 SCC 822, and Rajnesh v. Neha, AIR 2021 SC 569 (non-payment of interim maintenance entitles the wife to have the respondent's defence struck off), the Court held it had no other option except to set aside the Family Court's order on the ground of non-payment of maintenance. Appeal allowed, divorce order set aside, no costs, connected miscellaneous petition closed.

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C.M.A.No.3566 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 28.01.2025

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CORAM

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THE HONOURABLE MRS. JUSTICE J.NISHA BANU and THE HONOURABLE MR. JUSTICE R.SAKTHIVEL

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C.M.A.No.3566 of 2019 and

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C.M.P.No.20719 of 2019

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Gausalya

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..Respondent/Appellant

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-vs-

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Hemanand ...Petitioner/Respondent Prayer : This Civil Miscellaneous Appeal is filed under Section 19 of Family Courts Act, 1984 to set aside the fair and final order dated 01.03.2017 made in F.C.O.P.No.471 of 2013 on the file of the Family Court, Salem.

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For Appellant : Mr.P.M.Jayachandran For Respondent : Mr.V.Nithyanandam

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J U D G M E N T

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(By J.Nisha Banu,J.) This Civil Miscellaneous Appeal has been filed, seeking to

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set aside the order dated 01.03.2017 in F.C.O.P.No.471 of 2013 on the

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file of the Family Court, Salem, by which, the Family Court, Salem

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allowed the petition filed by the respondent / husband for divorce.

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https://www.mhc.tn.gov.in/judis

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C.M.A.No.3566 of 2019

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Learned counsel for the appellant /wife stated that despite the order dated 28.09.2016 passed in I.A.No.43 of 2015 in F.C.O.P.No.471 of 2013 for payment of maintenance to the tune of Rs.25,000/- per month to the appellant herein, payable by the respondent/husband, no maintenance amount has been paid to the appellant/wife. He further stated that subsequently, divorce has been granted and the marriage of the appellant and the respondent was dissolved.

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Per contra, learned counsel for the respondent / husband contended that though the appellant/wife lived with the respondent/husband for few months, she had claimed a huge amount of Rs.1,50,000/- per month as maintenance. He further contended that within the short period of matrimonial life, she had caused severe mental torture to the respondent / husband and her intention is to grab money from the respondent/husband and not to lead a peaceful marital life with him. He further contended that it is incorrect to state that the respondent/husband had not paid any amount towards maintenance to the appellant/wife, as some amount has been paid to the respondent/wife as maintenance.

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https://www.mhc.tn.gov.in/judis

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C.M.A.No.3566 of 2019

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The respondent/husband has not adduced any proof in respect of payment of maintenance to the appellant/wife. In such an event, it cannot be inferred that he had paid maintenance during pendency of divorce proceedings. It is relevant to point out at this juncture, the decision of the Hon'ble Supreme Court reported in Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 , wherein it has been held as follows:

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"In the event that there is any failure on the part of the respondent to comply with the order for deposit of arrears and month to month installments, it will be open to the appellant to apply before the Family Court to get the defence of the respondent struck off."

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Further, in the decision reported in AIR 2021 SC 569 (Rajnesh vs. Neha) , the Hon'ble Supreme Court had passed a detailed judgment giving certain Guidelines / Directions on Maintenance to be followed and in the said decision, the Hon'ble Supreme Court has observed as follows:

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“The Court concluded that if there was non-payment of interim maintenance, the defence of the respondent is liable to be struck off, and the appeal filed by the appellant-wife can be allowed, without hearing the respondent.”

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https://www.mhc.tn.gov.in/judis

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C.M.A.No.3566 of 2019

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J.NISHA BANU,J. and R.SAKTHIVEL, J. ar

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In the present case, the respondent/husband has not paid

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the maintenance amount to the appellant/wife, till date as directed by the

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Family Court.

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In view of the above, we are not inclined to uphold the the order dated 01.03.2017 passed in F.C.O.P.No.471 of 2013. This Court has no other option except to set aside the order of the Family Court on the ground of non-payment of maintenance amount.

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Accordingly, this Civil Miscellaneous Appeal is allowed

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and the order dated 01.03.2017 passed in F.C.O.P.No.471 of 2013 by the Family Court, Salem is hereby set aside. No costs. Consequently, connected Miscellaneous Petitions is closed.

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(J.N.B,J.) (R.S.V.,J.) 28.01.2025

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ar To: The Family Court Judge, Salem.

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C.M.A.No.3566 of 2019

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https://www.mhc.tn.gov.in/judis

Gausalya v. Hemanand

Case brief

What is this about?

What did the court decide?

Gausalya v. Hemanand

Case brief

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