IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2017 CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR and
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
C.M.A.SR.No.74003 of 2016 and C.M.P.No.3294 of 2017 K.Dharmalingam ... Appellant / Petitioner vs.
Tmt.K.Chitra ... Respondent CMA Sr.No.74003 of 2016: Civil Miscellaneous Appeal filed under Section 19 of the Family Court Act, 1984 against the order and decree in I.A.No.1173 of 2011 in O.P.No.3779 of 2007 dated 20.01.2013 on the file of the learned III Additional Family Court at Chennai.
CMP No.3294 of 2017: Civil Miscellaneous Petition filed under Section 19 (3) of the Family Court Act, 1984 to condone the delay of 1146 days in filing the Civil Miscellaneous Appeal.
For Appellant/petitioner : Mr.B.Sundara Pandiyan J U D G M E N T
(Order of the Court was made by M.GOVINDARAJ, J.)
Appellant/petitioner married the respondent/wife on 09.07.1992 at Kottai, Attur, as per the Hindu Rites and Customs. They were settled at Chennai. The respondent/wife suffered lung problem and the Appellant/petitioner had taken care of her treatment. But the Appellant/petitioner alleges that the respondent/wife had developed illegal intimacy with a person in the same locality and continued their relationship despite, the advice given by him. Thereafter, the Appellant/petitioner has sent the respondent/wife to her parents house. From the year 2003 onwards, they are living separately.
2. The Appellant/petitioner filed O.P.No.3779 of 2007 on the file of the III Additional Family Court at Chennai, for dissolution of marriage on the grounds of adultery and desertion. While the matter is pending, the respondent/wife filed the interim application in I.A.No.225 of 2008 and a sum of Rs.1,500/- per month was ordered to be paid as interim maintenance. Thereafter, the respondent filed another application in I.A.No.1173 of 2011 for enhancement of interim maintenance from Rs.1,500/- to Rs.15,000/- per month. Again the Court partly allowed the petition and enhanced the interim maintenance to Rs.5,000/- per month. Against the said order dated 20.01.2013, the petitioner is before this Court. There is a delay of 1146 days in filing the present appeal. The reason stated is that he was not well and taking treatment for the disease. The Appellant/petitioner further states that he has paid Rs.7,500/- towards arrears of interim maintenance and sought for condonation of delay in preferring the above Civil Miscellaneous Appeal.
3. We have perused the records filed by the appellant/petitioner. From the records it is seen that the petition for divorce was filed as early as 2007. The respondent/wife filed the counter immediately within one month. Thereafter, proceedings were going on for a long time and the respondent/wife had filed the petition for maintenance in the year 2011 and the same was ordered. Initially an amount of Rs.1,500/-per month has been ordered and later it was enhanced to Rs.5,000/- per month in the year 2013. Thereafter, it appears that the appellant/petitioner evaded payment of maintenance for three long years. Respondent/wife filed an execution petition, demanding arrears of maintenance to the tune of Rs.2,20,500/- from the appellant/petitioner in E.P.No.4 of 2016, which is pending adjudication. At this stage, the appellant/petitioner has preferred the above appeal dated 30.09.2016, with a delay of 1146 days.
4. From the sequence of events, we can infer that the petition for divorce is still pending and the Appellant/petitioner is effectively prosecuting the same from 2007 onwards. For the past 10 years, he is prosecuting the case by attending the Family Court in person. While that being so, the Appellant/petitioner cannot take exception from complying with the order of the Family Court towards payment of interim maintenance.
5. It is well settled that the litigation expenses and the maintenance ordered by the competent Court is payable, even when the main petition is terminated. The appellant/petitioner/husband, in order to escape from the clutches of the execution proceedings, which is pending before the Family Court has filed the present petition with a delay of 1146 days. If at all the Appellant/petitioner is aggrieved by the order of payment of maintenance, he should have approached this Court as early as 2013 itself. But he has been effectively pursuing the petition for divorce and protracted the compliance of the order of interim maintenance without making any payment. From the execution petition, it is found that a sum of Rs.2,20,500/- is due as on 31.03.2015. But the appellant has stated that he has paid a sum of Rs.7,500/-.
6. From the conduct of the Appellant/petitioner we can easily infer that the petitioner is protracting the proceedings, in order to evade payment of arrears of maintenance, has preferred the above appeal against the order of the Family Court in I.A.No.1173 of 2011 in I.A.No.225 of 2008 in O.P.No.3779 of 2007 and seeks for stay of all further proceedings on the file of the Family Court, Chennai. If stay is granted, it will effectively stall payment of interim maintenance. Such an act is considered as abuse of process of law and therefore, we are not inclined to condone the delay of 1146 days.
7. Moreover, the reason for delay shall be explained on a day to day basis. Appellant/petitioner has come out with a statement that he has fallen sick and recovered from illness only recently, but, the records show that he continued to prosecute the petition for divorce for the past 9 years. Therefore, the reason adduced is not sufficient and valid. On this ground, also this Court is not inclined to condone the delay and accordingly, Civil Miscellaneous Petition No.3294 of 2017 in dismissed and the appeal in CMA SR.No.74003 of 2016, stands rejected. No costs.
Index: Yes/No Internet: Yes/No ars To The III Additional Family Court, Chennai.
[S.M.K., J.] [M.G.R.,J.] 23.02.2017 S.MANIKUMAR, J.
AND M.GOVINDARAJ, J.
ars C.M.A.SR.No.74003 of 2016 and C.M.P.No.3294 of 2017
23.02.2017
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