Madras High Court Family Law Digest 2023

Case Title: P Geetha v. V. Kirubaharan

Citation: 2023 LiveLaw (Mad) 2

While allowing a petition filed by a woman for transfer of a divorce petition from Poonamalle to Tiruchirappalli, the Madras High Court said parents are duty bound to maintain their minor children and in absence of a formal application, the courts also are bound to consider grant of interim maintenance to protect the interests of minor children.

Justice SM Subramaniam said though order of interim maintenance is conditional on the circumstances that the wife or husband, who makes the claim has no independent income sufficient for her or his support, it is no answer to a claim of maintenance that the wife is educated and could support herself.

District Collector Can Take Disciplinary Action Against Subordinate Officer Over Failure To Maintain Child: Madras High Court

Case Title: M Mahalakshmi v. M Vijayakumar

Citation: 2023 LiveLaw (Mad) 17

While hearing a petition to transfer a matrimonial dispute from Pudukottai to Ponneri in Tamil Nadu, the Madras High Court noted that the father, who was working as a Village Administration Officer was not paying interim maintenance to his 10 year old daughter.

While directing him to make such payment irrespective of visitation rights, Justice SM Subramaniam also directed the District Collector to take strict action against the officer under service rules if he failed to pay such interim maintenance.

Muslim Women Can Approach Family Courts For 'Khula', Self Declared Bodies Like 'Shariat Council' Can't Certify Dissolution Of Marriage: Madras High Court

Case Title: Mohammed Rafi v. State of Tamil Nadu and Others

Citation: 2023 LiveLaw (Mad) 34

The Madras High Court has said that the Shariat Councils are neither courts nor arbitrators and thus they cannot pronounce or certify dissolution of marriage by Khula.

Justice C Saravanan quashed a Khula certificate issued by the Shariat Council and directed a woman and her husband to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes.

The bench noted that even previously, the High Court in Bader Sayeed Vs. Union of India had restrained bodies such as Kazis from issuing certificates dissolving marriages by Khula.

Maintenance To Wife Not A Debt, Husband's Pension Not Exempted From Attachment Towards Payment Of Arrears: Madras High Court

Case Title: P Amutha v Gunasekaran

Citation: 2023 LiveLaw (Mad) 36

The Madras High Court has held that the maintenance allowance that is granted to the wife would not come within the purview of debt and thus, the pension of the husband is not exempt from attachment towards payment of arrears of maintenance.

Highlighting that maintenance is a social justice to prevent destitution and vagrancy, Justice V Sivagnanam observed,

"Lawful claim due to a woman in distress should not be denied heartlessly and lawlessly. The conscience of social justice, the cornerstone of our constitution will be protected. Therefore, I hold that the maintenance allowance granted to wife cannot be considered as a debt and she is not a creditor. Hence, exemption under Section 11 of the Pension Act 1871 as well as the exemption provided in Section 60(1)(g) of Civil Procedure Code, cannot be granted to husband."

Overseas Citizens, Persons Temporarily Residing In India Entitled To Seek Relief Under Domestic Violence Act: Madras High Court

Case Title: KC v. UK

Citation: 2023 LiveLaw (Mad) 40

The Madras High court recently held that the law in India does not prohibit a person holding an Overseas Citizenship of India (OCI) card or person temporarily residing here from seeking relief under the Domestic Violence Act in the Indian courts.

Justice SM Subramaniam said upon Section 27 of the Protection of Women from Domestic Violence (DV) Act "unambiguously stipulates that aggrieved person temporarily residing or carrying out business or employed is also falling within the ambit of the Domestic Violence Act, 2005. Therefore, a person, who is temporarily residing in India or Overseas Citizen of India, if abused economically by the spouse, who is residing in other country, is entitled to seek relief under the Act. The cause of action arouses in India, since the aggrieved person is residing in India."

Second Petition For Divorce On Grounds Like Cruelty, Desertion, Adultery Not Hit By Res-Judicata When Founded On New Facts: Madras High Court

Case Title: S v. V

Citation: 2023 LiveLaw (Mad) 42

The Madras High Court recently said that as far as grounds for dissolution of marriage are concerned, they are of continuing nature.

Justice GK Ilanthiraiyan held that when the cause of action is of continuing and recurring nature, the subsequent petition for divorce will not be hit by res judicata.

The court noted that as long as the cause of action remains different and the relief is founded on new facts, there is no bar on raising the same grounds again.

'Husband Not Incapacitated': Madras High Court Sets Aside Family Court Order Asking Wife To Pay Interim Maintenance

Case Title: SR v. MCR

Citation: 2023 LiveLaw (Mad) 81

The Madras High Court has recently set aside an order of the Family Court directing the wife to pay twenty thousand rupees as interim maintenance to her husband during the pendency of their divorce petition.

Justice R Subramanian and Justice K Govindarajan Thilakavadi noted that the Family Court judge had "magnified" a small procedure and had misplaced sympathy. The family judge had noted that the husband had undergone angioplasty and had a stent fixed which made him incapable to work.

Mother Entitled To Arrears Of Maintenance Accrued To Deceased Daughter: Madras High Court

Case Title: Annadurai v Jaya

Citation: 2023 LiveLaw (Mad) 131

The Madras High Court recently held that a mother is entitled to claim the arrears of maintenance that accrued to her deceased daughter before her death. The court noted that arrears of maintenance was the property of the deceased daughter and after her death, her mother, being a legal guardian, is entitled to this property.

Justice V Sivagnanam thus dismissed the criminal revision petition filed by the ex-husband of the deceased daughter challenging the order of the Judicial Magistrate wherein the court allowed the mother to be impleaded to collect the arrears of maintenance.

Wife As Homemaker Contributes To Husband's Acquisition Of Assets; Entitled To Equal Share In Properties : Madras High Court

Case Title: Kannaian Naidu and others v Kamsala Ammal and others

Citation: 2023 LiveLaw (Mad) 172

In a significant verdict, the Madras High Court recently held that a wife, who contributed to the acquisition of family assets by performing the household chores, would be entitled to an equal share in the properties, as she had indirectly contributed to its purchase.

Justice Krishnan Ramasamy observed that though there was no legislation at present that recognized the contribution made by the wife, the court could very well recognize the same. The Court added that the law does not prevent a Judge from recognizing the contributions.

The court agreed with the wife's submission that she had contributed to the family by taking care of the household and the children. The court noted that the wife, though did not make direct financial contributions, had played a vital role in managing the household chores by looking after the children, cooking, cleaning and managing day-to-day affairs of the family without giving any inconvenience to the plaintiff abroad and moreover, she sacrificed her dreams and spent her entire life towards the family and children.

Police Can Register FIR For Non-Payment Of Maintenance As It Amounts To Economic Abuse, Breach Of Protection Order Under DV Act: Madras High Court

Case Title: Amalraj v State and Another

Citation: 2023 LiveLaw (Mad) 191

The Madras High Court has ruled that non-payment of maintenance amount is a breach of protection order under Section 18 of the Act and registration of an FIR on that ground is lawful.

Justice KK Ramakrishnan of the Madurai bench observed that Section 31 of the Protection of Women Against Domestic Violence Act was enacted to ensure social justice and to regulate the violator of a protection order. The court called the provision a life-saving medicine by treating failure of remittance of maintenance as an offence and crime.

The court also disagreed with a reasoning of the Kerala High Court that such wide interpretation of Section 31 would lead to over-flooding of courts, and opined that flooding of courts would only signify that the people have faith in the judiciary which is a good sign for the judiciary.

'Wife' Entitled To Maintenance Under Section 125 CrPC Even If Marriage Was Not Legal: Madras High Court

Case Title: Loyola Selva Kumar v Sharon Nisha

Citation: 2023 LiveLaw (Mad) 192

The Madras High Court recently held that even if a marriage was not legal due to the existence of a first marriage, the second wife and the children born out of the second marriage will be entitled to maintenance under Section 125 of the Code of Criminal Procedure.

Justice K Murali Shankar of the Madurai bench was dealing with a revision petition seeking review of an order passed by Family Court, Tirunelveli directing a man to pay a monthly maintenance of ten thousand rupees to his "wife" and their son and to pay the entire arrears of maintenance amount within a month.

When Wife Initiates Proceedings For Vindication Of Her Rights, It Can Never Be Considered Mental Cruelty: Madras High Court Sets Aside Divorce Decree

Case Title: C v S

Citation: 2023 LiveLaw (Mad) 199

While setting aside a divorce decree, the Madras High Court said that when a wife initiates proceedings for vindication of her rights, it can never be termed as mental cruelty.

Justice R Vijayakumar of the Madurai Bench said:

“This Court is of the considered opinion that the divorce petition lacks pleadings with regard to the mental cruelty, desertion and the deposition of the husband relating to the said allegation do not support the case of the husband. The litigation initiated by the wife is only to protect her property rights and her custody of her son. When the initiation of such proceedings is for the vindication of her rights, the said proceedings can never be considered to be a ground for mental cruelty”.

Husband Taking 'Academic Break' Doesn't Extinguish His Duty To Maintain Wife And Children: Madras High Court

Case Title: SV v. MR

Citation: 2023 LiveLaw (Mad) 273

While refusing to interfere with an order of maintenance made by the Family Court, the Madras High Court has observed that a husband is liable to pay maintenance to his wife and child even if he is on an academic break to pursue a Ph.D.

“The amount awarded in our opinion would be just about sufficient for sustainance of one human being at the cost of living today. Merely because the petitioner has taken a study holiday or an Academic break, his duty to maintain his wife and child cannot take the back seat,” the court observed.

Husband's Illicit Relationship With Sister-In-Law Cruelty U/S 498A IPC: Madras High Court Sets Aside Acquittal, Criticises Probe

Case Title: Mrs. Pista Kanwar v The Inspector of Police and Others

Citation: 2023 LiveLaw (Mad) 287

While setting aside the acquittal of a man in a case involving death of his wife by self-immolation, the Madras High Court has observed that the husband's illicit relation with his elder brother's wife would amount to cruelty on the wife within the meaning of Section 498A of IPC.

The High Court disagreed with the view taken by the trial court that such relation was only immoral and did not amount to cruelty. The court added that when such illicit relationship was happening inside the house under the pretext of “motherly affection” and which was witnessed by the victim herself, the trial court had erred in rendering such a find.

Although Islamic Law Allows Polygamous Marriage, Husband Must Treat All Wives Equally: Madras High Court Allows Dissolution of Marriage By First Wife

Case Title: PK Mukmuthu Sha v PS Mohammed Afrin Banu

Citation: 2023 LiveLaw (Mad) 410

The Madras High Court recently observed that although Islamic Law allowed a husband to have polygamous marriages, he was obligated to treat all the wives equally.

The bench of Justice RMT Teekaa Raman and Justice PB Balaji thus confirmed a family court order allowing dissolution of marriage finding that the husband had treated the wife with cruelty by not treating her on par and equally with the second wife.