SMT. N ASHA vs SRI G SREENIVASA MURTHY

The petitioner is before this Court assailing the order dated 31.01.2017 passed on I.A.No.2 in O.S.No.255/2014 insofar as the Court below

not considering the claim of petitioner No.1 for grant of maintenance.

Petitioner No.1 is the wife of the respondent and petitioner No.2 is their son. Due to certain disputes in their married life, the parties have been

litigating with each other. Though reference is made to the other proceedings that had been initiated and the nature of interim maintenance that had

been granted therein, the issue at present is with regard to the consideration as made by the Court below on I.A.No.2 filed under Section 151 of

CPC by the petitioner herein in O.S.No.255/2014. The suit in O.S.No.255/2014 is instituted by the petitioners herein seeking that the respondent

be directed to pay the monthly maintenance of Rs.35,000/- to the petitioners herein who are the plaintiffs/petitioners in the said suit. In the pending

suit, the application in I.A.No.2 which is the subject matter herein was filed by the petitioners seeking grant of interim maintenance and litigation

expenses. The Court below through the order dated 03.11.2017 has directed payment of Rs.10,000/- per month to petitioner No.2- son, but has

rejected the claim of petitioner No.1-wife of the respondent. It is in that circumstance, the order being assailed is considered by this Court.

Heard the learned counsel for the petitioners and the learned counsel for the respondent and perused the petition papers.

In that light, a perusal of the order impugned would disclose that the Court below while declining the grant of maintenance to petitioner No.1-

wife, apart from accepting the contention of the respondent herein that petitioner No.1 has her own income has also observed that she is already

getting the maintenance of Rs.5,000/- per month from the defendant. The question therefore is as to whether such observation as made by the

Court below is justified and as to whether the contention as put forth by the learned counsel for the petitioners that the same is merely an

assumption of the Court below is to be accepted by this Court.

Before adverting to that aspect of the matter, considering the fact that the Court below has granted the interim maintenance of Rs.10,000/- to

petitioner No.2- son, it is clarified that any observation to be made herein will not affect the said portion of the order and would continue to remain

in force. In that background, though a contention had been raised by the respondent herein that petitioner No.1 herein has sufficient income,

petitioner No.1 herein had put forth the explanation with regard to her foreign travel stating that the mother of petitioner No.1 had sponsored her to

travel to different places which was a benefit which was available to the mother of petitioner No.1 due to her business. If that aspect of the matter

is taken note, except for the allegation as made by the respondent and the justification as put forth by the petitioners, there is no other material on

record.

Further, though the Court below has arrived at the conclusion that petitioner No.1-wife herein is getting the maintenance of Rs.5,000/- per

month from the respondent, the fact which has been lost sight by the Court below is that the said amount was an interim maintenance which had

been ordered in M.C.No.4260/2014. Since the said petition had been disposed of, the payment of that amount thereafter was not available to the

petitioner. Therefore, if this aspect is kept in view, no maintenance whatsoever is being paid by the respondent to petitioner No.1. Further except

for the assumption, no other material is relied on by the respondent to justify denial of the payment.

At the same time, when the allegation that petitioner No.1 had her own income is contended and since the learned counsel for the respondent at

this point seeks to rely on certain documents I am of the opinion, to that extent, a consideration in the writ petition relating to those aspects of the

matter would not arise. However, in a matter where the Court below has not appropriately considered the prayer as put forth by petitioner No.1

for maintenance, but has assumed certain aspects, to that extent, I am of the opinion that reconsideration of I.A.No.2 insofar as the prayer made

by petitioner No.1 for maintenance would be required. Further, pending reconsideration keeping in view the fact that at an earlier point during the

pendency of M.C.No.4260/2014, the interim maintenance of Rs.5,000/- had been ordered and the same had come to an end when the matter had

been disposed of and also keeping in view that the Court below had assumed payment of such amount, the said amount shall be available to be

paid as an interim measure till the application in I.A.No.2 to the extent of consideration of maintenance for petitioner No.1 is reconsidered and

disposed of by the Court below one way or the other in accordance with law.

Hence, the order dated 31.01.2017 passed on I.A.No.2 in O.S.No.255/2014 is modified. To that extent, by partly allowing this petition and

setting aside the order in part, the application in I.A.No.2 is restored to the file of the Court below so as to consider the claim of petitioner No.1

for maintenance. It is again clarified that the maintenance as ordered to petitioner No.2-Son is sustained and the same shall be continued to be

paid. Further pending consideration of the claim of petitioner No.1 on I.A.No.2 for maintenance till disposal of the application, the sum of

Rs.5,000/- per month shall be paid to petitioner No.1 as interim maintenance pending consideration of the application. The Court below shall

make all endeavour to dispose of the application as expeditiously as possible, but not later than two months from the date on which a copy of this

order is furnished.

The petition is disposed of accordingly.