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C. SELVARAJ V/S S. JOTHIMANI & OTHERS, decided on Monday, November 20, 2017.
[ In the High Court of Madras, C.M.A. No. 249 of 2015 & M.P. No. 1 of 2015. ] 20/11/2017
Judge(s) : A. SELVAM & P. KALAIYARASAN
Advocate(s) : A. Deivasigamani G.R. Saravanabhavan. No Appearance.
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    (Prayer: Civil Miscellaneous Appeal preferred against the order dated 17.07.2013 made in I.A.No.1736 of 2010 in H.M.O.P.No.1071 of 2009 on the file of the Family Court Coimbatore.)A. Selvam J.1. This Civil Miscellaneous Appeal has been directed against the order dated 17.07.2013 passed in I.A.No.1736 of 2010 in H.M.O.P.No.1071 of 2009 by the Family Court Coimbatore.2. The first respondent herein as petitioner has filed H.M.O.P.No.1071 of 2009 on the file of the trial Court under Section 9 of the Hindu Marriage Act 1955 for getting restitution of conjugal rights wherein the appellant herein has been arrayed as respondent. During pendency of the same the first respondent for herself and on behalf of her minor children have filed I.A.No.1736 of 2010 under Section 24 of the Hindu Marriage Act 1955 for getting the relief of interim monthly maintenance and also litigation expenses.3. The trial Court after considering the available evidence on record has allowed I.A.No.1736 of 2010 in part and thereby directed the respondent therein [husband] to pay interim monthly maintenance of Rs.5 000/- by way of passing the impugned order and the same is being challenged in the present Civil Miscellaneous Appeal.4. Even though the first respondent has been served with notice appearance has not been made. Under the said circumstances this Civil Miscellaneous Appeal has been disposed of on merits.5. The learned counsel appearing for the appellant/ respondent has contended to the effect that the appellant/respondent is getting a monthly salary of Rs.800/-. Since the appellant/ respondent is economically a weak person he is not in a position to comply with the order passed in I.A.No.1736 of 2010 and therefore the order passed by the trial Court is liable to be set aside and the petition filed in I.A.No.1736 of 2010 is liable to be dismissed.6. It is an admitted fact that the first respondent as petitioner has filed H.M.O.P.No.1071 of 2009 on the file of the trial Court for getting restitution of conjugal rights. It is also equally an admitted fact that during pendency of the same I.A.No.1736 of 2010 has been filed by the first respondent [wife] and her children.7. The trial Court after considering the available evidence on record has awarded a meager sum of Rs.5 000/- towards interim monthly maintenance.8. The only defence taken on the side of the appellant/ respondent is that he is not able to pay the amount fixed by the trial Court in the order passed in I.A.No.1736 of 2010.9. Considering the fact that the appellant/respondent is the husband of the first respondent and father of the remaining respondents and also considering that the first respondent has filed H.M.O.P.No.1071 of 2009 legally the appellant/husband is bound to pay interim monthly maintenance to the first respondent/wife.10. The trial Court after considering the overall evidence available on record has rightly passed the impugned order and the same is not liable to be set aside.In fine this Civil Miscellaneous Appeal is dismissed without costs. The order dated 17.07.2013 passed in I.A.No.1736 of 2010 in H.M.O.P.No.1071 of 2009 by the Family Court Coimbatore is confirmed. Connected Miscellaneous Petition is dismissed.