Dayalan v. Jayanthi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1074 of 2006andM.P.No.1 of 2006Dayalan ..Petitioner/Respondentvs.1.Jayanthi2.Minor Yogalakshmi rep.by the mother the first petitioner herein ..Respondents/Petitioners Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 20.7.2006, passed by the Chief Judicial Magistrate,Chengalpagttu, in M.C.No.5 of 2005.For Petitioner : Mr.V.ParthibanFor Respondent : Mr.V.Arul O R D E R Animadverting upon the the common order dated 20.7.2006, passedby the Chief Judicial Magistrate, Chengalpagttu, in M.C.No.5 of 2005this criminal revision case is focussed.2. A 'resume' of facts, which are absolutely necessary andgermane for the disposal of this criminal revision case would runthus:-The respondents herein filed the M.C.No.2 of 2005 before theChief Judicial Magistrate, Chengalpattu, seeking maintenance on thefollowing grounds:The first respondent herein and the revision petitionergot married on 21.5.2004 as per Hindu Rites and Customs andduring the wed lock, they gave birth to R2 herein-the child.While so, the husband created trouble in the matrimonial life,which caused rift in the relationship. Admittedly, she wasconstrained to live in her parents house and file this M.C.The revision petitioner herein resisted the M.C. https://hcservices.ecourts.gov.in/hcservices/

3. During enquiry, the first respondent examined herself asP.W.1 along with one Krishnan as P.W.2 and Exs.P1 to P3 were marked.The revision petitioner examined himself as D.W.1 along with twoothers as D.Ws.2 and 3 and Exs.D1 to D8 were marked.4. Ultimately, the learned Magistrate awarded maintenance in asum of Rs.700/-per month in favour of the wife and a sum of Rs.300/-p.m. in favour of the minor child. Being aggrieved by anddissatisfied with the order of the lower Court, this revision isfocussed on various grounds, the nitty-gritty of them would be to theeffect that without proper appreciation of facts, the learnedMagistrate simply awarded maintenance, even though the husband wasready and willing to resume cohabitation with the wife and maintainher and the child and he also filed the H.M.O.P.No.21 of 2005,seeking restitution of conjugal rights, which is pending before theSub-Court, Madurandagam. As such, the revision petitioner prayed forsetting aside the order of the Magistrate and for the dismissal ofthe M.C.5. Heard both sides.6. The point for consideration is as to whether the order of theMagistrate is perverse, in appreciating the evidence and in awardingmaintenance in favour of the wife and child of the revisionpetitioner.7. The learned counsel for the revision petitioner would setforth and put forth his arguments to the effect that when the husbandis ready and willing to resume cohabitation with the wife, then thewife is not justified in staying away from the matrimonial home andin fact legally such a wife is not entitled to claim maintenance; thehusband also has not perpetrated any cruelty on the wife and she ofher own accord had chosen to stay away from the matrimonial home andlive in her father's house with the child. 8. Whereas, the learned counsel for the wife and child-therespondents herein would argue by way of pulverising and torpedoingthe arguments as put forth on the side of the revision petitionerthat the first respondent being the wife behaved dutifully towardsthe husband, but he suspected her fidelity without any basis and alsoinvolved in perpetrating cruelties as against her as found set out inthe petition; the lower Court considering all these facts held thatthe husband was bound to maintain the wife and child and accordinglypassed the award, warranting no interference by this Court. 9. The perusal of the judgement of the lower Court wouldexemplify and demonstrate, display and convey that the lower Courtconsidered the evidence of P.W.1-the wife of the revision petitionerand held that there was no justification on the part of the husbandin refusing to maintain the wife and child. https://hcservices.ecourts.gov.in/hcservices/

10. It is obvious and axiomatic that proceedings under Section125 of Cr.P.C. are summary in nature, where the Magistrate is notexpected to delve deep into each and every aspect of the matrimonialdispute and dilate thereon. Incommensurate with the appropriatelegal proposition only the learned Magistrate held that the wife wasnot at fault. The very fact that even now the husband is expressinghis desire to have cohabitation with his wife would speak volume thatthe wife is not having any blame worthy conduct on her part. Ifreally she involved herself in unwarranted and unchaste acts asagainst the matrimonial life between the revision petitioner and R1,certainly the revision petitioner would not have ventured to comeforward to resume cohabitation with her. The counter filed by therevision petitioner-husband would not in any way reveal that the wifewas so aggressive or having any hostile attitude towards the husband.What are all the husband would detail and delineate in his counter tothe M.C.is that the wife was in the habit of pestering the husband,namely, the revision petitioner, to provide some financial support toher brother. Even such a plea is found to be true, in my opinion,that cannot be a ground for the husband to desert his wife and refuseto provide maintenance to her and to the minor child. As such, I amof the considered opinion that the approach of the Magistrate is notperverse and there is no illegal exercise of jurisdiction on the partof the Magistrate in awarding maintenance. Wherefore I could see nomerit in the contention of the revision petitioner.11. A bare perusal of the records would display and convey thatthe wife is in a cash strapped and penurious circumstance and she isreeling under poverty and at this present day cost of living, it isobvious that a lady with a child would not be able to live withouthaving sufficient funds and she along with the child would be aburden to her parents. In such a case, it is the husband, who shouldprovide maintenance to them. Having this principle in mind, thelearned Magistrate correctly ordered maintenance, that too, in myopinion meagre maintenance, warranting no interference by this Court.12. The learned Magistrate also in paragraph No.9 of the orderadverted to the fact that the revision petitioner himself admittedthat he is owning an extent of 2 acres 16 cents of land. Over andabove that, the legal proposition is to the effect that a healthymale cannot wriggle out of his liability to pay maintenance underone pretext or other and he has to toil and moil anything, inaddition to straining every nerve to see that he is earning, so as toprovide maintenance to his wife and minor child. As such, theawarding of the sum of Rs.700/- per month in favour of the firstrespondent herein and a sum of Rs.300/- in favour of the minor child,in my opinion perfectly justified and no interference is required.Accordingly, this criminal revision case is dismissed. Consequently,connected miscellaneous petition is dismissed. https://hcservices.ecourts.gov.in/hcservices/

13. The learned counsel for the petitioner would earnestly pleadbefore this Court that the revision petitioner is longing for reunion.14. I am of the opinion that if that be the attitude of therevision petitioner, at the first instance he should createconfidence in the mind of his wife by paying the arrears and therebylure her to the matrimonial home and it is also open for him to takesteps to arrange for mediation for reunion.15. The learned counsel for the respondents would pray fordirecting the revision petitioner to pay the accrued arrearsimmediately to the respondents.16. I would direct that in commensurate with the order of thisCourt and also in compliance with the order of Magistrate, therevision petitioner is expected to pay the arrears immediately to therespondents.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarMskTo The Chief Judicial Magistrate, Chengalpagttu.+ 1 c.c. to Mr. V. Parthiban, Advocate. S.R.No.23971.+ 1 c.c. to Mr. G. Jeremiah, Advocate. S.R.No.24556. Crl.R.C.No.1074 of 2006RSM (CO)GSK 08.07.2009.